Observatorio PSyD
The observatory says
11th of April 2013
The Arms Trade Treaty: a first approach
Col. Francisco Rubio Damián
Commander Military Mountain and Special Operations School
Tagged as: The Arms Trade Treaty
The first treaty on conventional arms trade was adopted as a resolution by the General Assembly of the United Nations on 2 April. The Arms Trade Treaty (ATT) was first addressed in the UN in December 2006 when the General Assembly adopted resolution 61/89 “Towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms”. Since then, the co-authors of the initiative–Argentina, Australia, Costa Rica, Finland, Japan, Kenya and the UK– were aware that the main obstacle to overcome during the Final Conference, held in New York from 18 to 28 March 2013, would be the need to reach consensus on the final decision. Indeed, the position of Iran, North Korea and Syria blocked consensus so the Member States decided to refer the adoption of the treaty to the General Assembly of the UN, where the draft resolution on the ATT was submitted and approved by a 154-to-3 vote with 23 abstentions and 13 absences. Now is the time for the ratification process and the signature by all States, starting from 3 June 2013 until its entry into force.
Object
The Treaty recalls article 26 of the Charter of the UN to establish that its object is to improve the regulation of the international trade in conventional arms in order to prevent and eradicate the illicit trade and prevent the diversion of arms. The aim is to promote cooperation, transparency, responsible action and confidence by States Parties. More specifically, the agreement seeks to prevent weapons falling into the hands of governments subject to Security Council sanctions, terrorist groups and organized crime. Therefore, the ATT does not question the internal regulation of any State or the use of firearms for recreational, cultural, historical and sporting activities.
Principles
Most of the principles underlying the TCA also emanate from the UN Charter: the right of all States to individual or collective self-defence (art. 51), the settlement of international disputes by peaceful means (art. 2.3), the renunciation of the threat or use of force against the territorial integrity or political independence of any State (art. 2.4), the non-intervention in domestic matters (art. 2.7) and the respect for human rights (UN Charter and Universal Declaration of Human Rights). To these principles are added the international humanitarian law and the responsibility of all States to regulate the international trade in arms, to prevent their diversion and to implement national control systems, as well as the respect for the legitimate interests of States to produce and trade conventional arms for use in national defense and peace operations.
Scope
Three concepts set the scope of the TCA: international trade and conventional arms and illicit trade. The activities of the international trade in arms ruled by the Treaty are export, import and transfer, including in the last transit, trans-shipment and brokering. The ATT will not apply to the international movement of conventional arms on behalf of a State Party for its use. The term conventional arms includes all those other than nuclear, biological, chemical or radiological. However, the Treaty provides an accurate list of the type of weapons subject to the new regulatory system: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers and small arms and light weapons, as well as ammunition, parts and components. The illicit trade includes the trade and transfer of firearms subject to prohibition or restriction. Specifically, are part of this category the commercial actions that violate Security Council (UNSC) resolutions, the international humanitarian law and international agreements, as well as those designed to commit genocide, acts of violence against women and children, the violation of human rights, war crimes and crimes against humanity. It is also illicit the traffic that does not guarantee that the arms will not end up in the hands of terrorist groups and the organized crime.
Obligations
States Parties are committed to establish a national control system to regulate the trade of arms, ammunition, components and parts, as well as to facilitate its national control list to the other States Parties. They should also take measures to regulate the transfer activities under their jurisdiction and avoid illegal diversions.
Prohibitions
The Treaty prohibits the trade and transfer of arms against: UNSC decisions; obligations regarding international transfer and illicit trade in arms; and in general, if a State has knowledge that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions, 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. In any case, the agreement will not rule the internal use of conventional arms.
Deficiencies and weaknesses
There are two circumstances that warn of the moderate degree of commitment demanded by the ATT. First, the document only had the straight opposition of North Korea, Iran and Syria, three countries often isolated as pariahs in the international arena. Even more, it is noteworthy that most of the nations dissatisfied with the agreement adopted moderate positions such as the abstention and the absence of vote. Second, it has been noticed that the major arms exporters did not vote against the Treaty. Moreover, the U.S. Secretary of State expressed satisfaction with the agreement, stating that the United Nations General Assembly had approved a strong, effective and implementable Arms Trade Treaty that can strengthen global security while protecting the sovereign right of States to conduct legitimate arms trade.
First weakness: the lack of specificity
The main reason given by the countries which did not supported the ATT was its lack of specificity, and highly likely they are right. Thus, the head of Russian delegation justified its abstention declaring that the aim and object of the Treaty were good, but the document contained many slogans and certain provisions that gave rise to doubts. It also assigns tasks in a widespread fashion, with little specification on how to implement them. Let us see some aspects of this lack of precision. First, Russia and the Bolivarian countries failed to get the ATT ban the supply of arms to rebel groups. This gap is not consistent with the principle assumed by the ATT of non-intervention in matters related to the domestic jurisdiction of each State, because it is well known that rebel groups aim their actions against the established power. The opposition to the postulates of Russia is closely related to the existence of a number of internal conflicts and, more specifically, to the crisis ravaging Syria. In fact, one of the co-authors of the Treaty, the United Kingdom, is leading the international position to lift the arms embargo to help Syrian rebels. Second, the implementation of many of the agreed measures will have little impact. For example, it is not very resolute the obligation to submit annually to the Secretariat by 31 May a report for the preceding calendar year concerning authorized or actual exports and imports of conventional arms, nor the corresponding assessment by the other parties. Another case of indeterminacy are restrictions on any transfer of conventional arms by a State Party "if it has knowledge" that they would be diverted to illegal uses. Third, the dispute settlement concerning the interpretation and application of the Treaty is based on voluntarism, since the parties are not required to undergo any arbitration which has not been previously agreed. They are only committed to consult and, by mutual consent, cooperate. Fourth, the prohibition to transfer arms to a country which is subject to sanctions by the Security Council (UNSC), in particular arms embargoes, is a positive measure, but suffers from the typical constraints of all proceedings under UNSC approval. Fifth, control over the trade and transfer of ammunition could not reach the level of demand claimed by some delegations. The position led by the United States prevented the establishment of similar controls to those of conventional arms sales, although the agreement calls for the parties to regulate the export of munitions. Finally, each State Party shall have the right to withdraw from the ATT, just by giving notification of such withdrawal to the Secretary General of the United Nations. An explanation of the reasons is not mandatory.
Second weakness: the list of weapons
After the lack of specificity, the main weakness of the Treaty is the counterproductive way to relate the weapons subject to new control system. The list contains eight categories of arms, including the seven listed in the United Nations Register of Conventional Arms, and the small arms and light weapons. The list of categories seems to be justified in order to avoid inaccurate interpretation of the scope of the States’ commitment, but this is just a paradox. In fact, the draft list contained the phrase "at a minimum", which was removed at the request of the United States, which at the end is a de facto restriction on the scope of the Treaty. Indeed, the list has an exhaustive form, but in practice there is a lack of systems that could be used as conventional arms. Furthermore, the aforementioned Register does not include in their descriptions ground-to-air missiles, medium and light mortars, certain types of warships, etc. Not surprisingly, the Treaty itself encourages the parties to apply its provisions to the broadest range of conventional arms, implicitly acknowledging its limitations. Without any doubt, some of these deficiencies will be remedied by the descriptions used for categories of small arms and light weapons in the relevant instruments of the United Nations when the Treaty enters into force.
Third weakness abstentions and absences
Abstentions and absences in voting could become, over the dissenting votes, in one of the weaknesses of the ATT. It will depend on the number and quality of ratifying countries, since the document only will force them. In this respect it should be stressed that the nations who have not voted for the agreement of the Treaty represent half of the world population. Among them are two states with veto power, Russia and China, leading their respective areas of power, as well as Saudi Arabia along with much of the Gulf sultanates, India, Egypt and others. They are joined by Cuba, Venezuela and the rest of the Bolivarian States, which regret that the trade to rebel groups and other non-state actors is not prohibited. They also consider that the agreement is not balanced because it benefits exporters and may be politically manipulated.
Conclusion
Despite all its limitations, the ATT has unleashed a wave of optimism among civil society organizations, institutions, States, agencies and media. After many years the first commitment of this nature has been reached and many believe that we are on track to end the illicit trade in conventional arms. However, there is still a long way to go. The chairman of the negotiations, Peter Woolcott, said the Treaty will reduce human suffering and save lives. No doubt about it, but the key to success will be the degree of generalization and the requirement of its obligations. In other words, the two factors that will determine how much can relevant areas stay outside the new system of regulation of conventional arms are the countries that ratify the Treaty and the more or less rigorous way to apply its measures.
Jaca (Spain), 11th April 2013
The first treaty on conventional arms trade was adopted as a resolution by the General Assembly of the United Nations on 2 April. The Arms Trade Treaty (ATT) was first addressed in the UN in December 2006 when the General Assembly adopted resolution 61/89 “Towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms”. Since then, the co-authors of the initiative–Argentina, Australia, Costa Rica, Finland, Japan, Kenya and the UK– were aware that the main obstacle to overcome during the Final Conference, held in New York from 18 to 28 March 2013, would be the need to reach consensus on the final decision. Indeed, the position of Iran, North Korea and Syria blocked consensus so the Member States decided to refer the adoption of the treaty to the General Assembly of the UN, where the draft resolution on the ATT was submitted and approved by a 154-to-3 vote with 23 abstentions and 13 absences. Now is the time for the ratification process and the signature by all States, starting from 3 June 2013 until its entry into force.
Object
The Treaty recalls article 26 of the Charter of the UN to establish that its object is to improve the regulation of the international trade in conventional arms in order to prevent and eradicate the illicit trade and prevent the diversion of arms. The aim is to promote cooperation, transparency, responsible action and confidence by States Parties. More specifically, the agreement seeks to prevent weapons falling into the hands of governments subject to Security Council sanctions, terrorist groups and organized crime. Therefore, the ATT does not question the internal regulation of any State or the use of firearms for recreational, cultural, historical and sporting activities.
Principles
Most of the principles underlying the TCA also emanate from the UN Charter: the right of all States to individual or collective self-defence (art. 51), the settlement of international disputes by peaceful means (art. 2.3), the renunciation of the threat or use of force against the territorial integrity or political independence of any State (art. 2.4), the non-intervention in domestic matters (art. 2.7) and the respect for human rights (UN Charter and Universal Declaration of Human Rights). To these principles are added the international humanitarian law and the responsibility of all States to regulate the international trade in arms, to prevent their diversion and to implement national control systems, as well as the respect for the legitimate interests of States to produce and trade conventional arms for use in national defense and peace operations.
Scope
Three concepts set the scope of the TCA: international trade and conventional arms and illicit trade. The activities of the international trade in arms ruled by the Treaty are export, import and transfer, including in the last transit, trans-shipment and brokering. The ATT will not apply to the international movement of conventional arms on behalf of a State Party for its use. The term conventional arms includes all those other than nuclear, biological, chemical or radiological. However, the Treaty provides an accurate list of the type of weapons subject to the new regulatory system: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers and small arms and light weapons, as well as ammunition, parts and components. The illicit trade includes the trade and transfer of firearms subject to prohibition or restriction. Specifically, are part of this category the commercial actions that violate Security Council (UNSC) resolutions, the international humanitarian law and international agreements, as well as those designed to commit genocide, acts of violence against women and children, the violation of human rights, war crimes and crimes against humanity. It is also illicit the traffic that does not guarantee that the arms will not end up in the hands of terrorist groups and the organized crime.
Obligations
States Parties are committed to establish a national control system to regulate the trade of arms, ammunition, components and parts, as well as to facilitate its national control list to the other States Parties. They should also take measures to regulate the transfer activities under their jurisdiction and avoid illegal diversions.
Prohibitions
The Treaty prohibits the trade and transfer of arms against: UNSC decisions; obligations regarding international transfer and illicit trade in arms; and in general, if a State has knowledge that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions, 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. In any case, the agreement will not rule the internal use of conventional arms.
Deficiencies and weaknesses
There are two circumstances that warn of the moderate degree of commitment demanded by the ATT. First, the document only had the straight opposition of North Korea, Iran and Syria, three countries often isolated as pariahs in the international arena. Even more, it is noteworthy that most of the nations dissatisfied with the agreement adopted moderate positions such as the abstention and the absence of vote. Second, it has been noticed that the major arms exporters did not vote against the Treaty. Moreover, the U.S. Secretary of State expressed satisfaction with the agreement, stating that the United Nations General Assembly had approved a strong, effective and implementable Arms Trade Treaty that can strengthen global security while protecting the sovereign right of States to conduct legitimate arms trade.
First weakness: the lack of specificity
The main reason given by the countries which did not supported the ATT was its lack of specificity, and highly likely they are right. Thus, the head of Russian delegation justified its abstention declaring that the aim and object of the Treaty were good, but the document contained many slogans and certain provisions that gave rise to doubts. It also assigns tasks in a widespread fashion, with little specification on how to implement them. Let us see some aspects of this lack of precision. First, Russia and the Bolivarian countries failed to get the ATT ban the supply of arms to rebel groups. This gap is not consistent with the principle assumed by the ATT of non-intervention in matters related to the domestic jurisdiction of each State, because it is well known that rebel groups aim their actions against the established power. The opposition to the postulates of Russia is closely related to the existence of a number of internal conflicts and, more specifically, to the crisis ravaging Syria. In fact, one of the co-authors of the Treaty, the United Kingdom, is leading the international position to lift the arms embargo to help Syrian rebels. Second, the implementation of many of the agreed measures will have little impact. For example, it is not very resolute the obligation to submit annually to the Secretariat by 31 May a report for the preceding calendar year concerning authorized or actual exports and imports of conventional arms, nor the corresponding assessment by the other parties. Another case of indeterminacy are restrictions on any transfer of conventional arms by a State Party "if it has knowledge" that they would be diverted to illegal uses. Third, the dispute settlement concerning the interpretation and application of the Treaty is based on voluntarism, since the parties are not required to undergo any arbitration which has not been previously agreed. They are only committed to consult and, by mutual consent, cooperate. Fourth, the prohibition to transfer arms to a country which is subject to sanctions by the Security Council (UNSC), in particular arms embargoes, is a positive measure, but suffers from the typical constraints of all proceedings under UNSC approval. Fifth, control over the trade and transfer of ammunition could not reach the level of demand claimed by some delegations. The position led by the United States prevented the establishment of similar controls to those of conventional arms sales, although the agreement calls for the parties to regulate the export of munitions. Finally, each State Party shall have the right to withdraw from the ATT, just by giving notification of such withdrawal to the Secretary General of the United Nations. An explanation of the reasons is not mandatory.
Second weakness: the list of weapons
After the lack of specificity, the main weakness of the Treaty is the counterproductive way to relate the weapons subject to new control system. The list contains eight categories of arms, including the seven listed in the United Nations Register of Conventional Arms, and the small arms and light weapons. The list of categories seems to be justified in order to avoid inaccurate interpretation of the scope of the States’ commitment, but this is just a paradox. In fact, the draft list contained the phrase "at a minimum", which was removed at the request of the United States, which at the end is a de facto restriction on the scope of the Treaty. Indeed, the list has an exhaustive form, but in practice there is a lack of systems that could be used as conventional arms. Furthermore, the aforementioned Register does not include in their descriptions ground-to-air missiles, medium and light mortars, certain types of warships, etc. Not surprisingly, the Treaty itself encourages the parties to apply its provisions to the broadest range of conventional arms, implicitly acknowledging its limitations. Without any doubt, some of these deficiencies will be remedied by the descriptions used for categories of small arms and light weapons in the relevant instruments of the United Nations when the Treaty enters into force.
Third weakness abstentions and absences
Abstentions and absences in voting could become, over the dissenting votes, in one of the weaknesses of the ATT. It will depend on the number and quality of ratifying countries, since the document only will force them. In this respect it should be stressed that the nations who have not voted for the agreement of the Treaty represent half of the world population. Among them are two states with veto power, Russia and China, leading their respective areas of power, as well as Saudi Arabia along with much of the Gulf sultanates, India, Egypt and others. They are joined by Cuba, Venezuela and the rest of the Bolivarian States, which regret that the trade to rebel groups and other non-state actors is not prohibited. They also consider that the agreement is not balanced because it benefits exporters and may be politically manipulated.
Conclusion
Despite all its limitations, the ATT has unleashed a wave of optimism among civil society organizations, institutions, States, agencies and media. After many years the first commitment of this nature has been reached and many believe that we are on track to end the illicit trade in conventional arms. However, there is still a long way to go. The chairman of the negotiations, Peter Woolcott, said the Treaty will reduce human suffering and save lives. No doubt about it, but the key to success will be the degree of generalization and the requirement of its obligations. In other words, the two factors that will determine how much can relevant areas stay outside the new system of regulation of conventional arms are the countries that ratify the Treaty and the more or less rigorous way to apply its measures.
Jaca (Spain), 11th April 2013
francisco_rubio_11_04_2013_en.pdf
