Analysis | The Arms Trade Treaty: A historic and momentous failure
Ideas, New in Ceasefire - Posted on Monday, April 29, 2013 15:02 - 12 Comments
By Kirk Jackson
When the UN General Assembly adopted the Arms Trade Treaty on April 2nd, it made headline news. Many of the NGOs that had campaigned for over 10 years to make it happen hailed it as a dream realised and “the dawn of a new era”.
And yet, over the last few years, a number of anti-arms trade groups and campaigners have become increasingly concerned that the treaty could not possibly live up to the claims being made about it, and that if it was adopted by the UN, it could do more harm than good.
This is the story of how a treaty that started with the best of intentions was critically weakened in its passage through the UN; how powerful arms exporting states hope to use it as a foreign policy tool; how the NGOs mis-sold the treaty to their supporters; and how the treaty could actually benefit the arms industry.
The Arms Trade Treaty
The original idea was simple: Recognising the terrible damage caused by the unchecked global trade in arms, a group of Nobel Peace Laureates drafted a set of principles that would apply existing international human rights and humanitarian law to international arms transfers.
These principles were developed into a draft arms trade treaty (ATT) that would oblige states to regulate and report all international arms transfers, and to prevent transfers where the arms would be likely to be used to commit war crimes or human rights abuses.
In 2003, three large NGOs – Amnesty International, Oxfam and the International Action Network on Small Arms (IANSA) – formed the Control Arms coalition to campaign for governments to adopt the treaty. In its first three years, the campaign gathered a petition of a million supporters, and it has remained the highest profile arms trade campaign in the world due to the global reach of the NGOs behind it.
The UK and the ATT
In 2006, the treaty was introduced to the UN by the UK ambassador, and the UK government has been at the forefront of negotiations ever since, arguing that the world needs an arms trade treaty. The government even gave Oxfam over £800,000 to campaign for the ATT.
It may seem impressive for the UK to be backing a treaty that could be expected to curb its own arms sales, given that the UK is one of the world’s “big six” arms exporters and regularly sells arms to human rights-abusing regimes. However, the UK’s support is not as laudable as it seems.
Firstly, it’s important to understand that the government does not believe that the ATT will affect the UK’s arms exports at all. The ATT is no more rigorous than the UK’s existing arms export licensing criteria. These criteria are supposed to prevent the export of arms that would be used for internal repression or human rights abuses, but in practice, they are routinely interpreted in a way which facilitates exports, and the government knows it will be able to do the same with the ATT.
As British diplomat Chris Wright made clear in a blog post entitled The Hidden Benefits of an Arms Trade Treaty; “it will not impact our ability to export arms to our allies.” He gave the Middle East as an example – a region in which Britain continues to market weapons to repressive regimes.
The countries of the Middle East were not so sure. Most of them opposed the ATT, fearing that it would limit their ability to acquire arms. However, the UK’s Arms Export Policy Department reassured them that the ATT “would not add anything on top of” existing criteria and that the ATT “will not make it more difficult” for them “to acquire the weapons that they feel they need”.
Seeking to reassure doubters, Foreign Secretary William Hague wrote: “The treaty on the table will not stigmatise the legitimate trade in arms. Instead it will protect it.”
Good for business
Notwithstanding its rhetoric about saving lives and reducing human suffering, the UK government is motivated by concerns different to those of Amnesty and Oxfam. In particular, the government has the commercial interests of arms companies at heart, and believes that the ATT will actually be “good for business, both manufacturing and export sales.”
This is because, ambiguous and ineffective though the UK’s current export licensing criteria are, many countries have even less regulation. In the words of Foreign Office Minister Alistair Burt, the UK wants an arms trade treaty that “helps create a level playing field for the legitimate defence industry”.
Declarations of support for the treaty from UK arms industry organisations show how little it threatens UK arms exports. As early as 2006, the Defence Manufacturers Association was confident that the treaty “would not bring new obligations for UK industry,” and its Director General declared his support for the campaign, saying that the ATT would “help improve the image of the industry.”
A foreign policy tool
The UK and US governments also see the treaty as a tool they can use to prevent weapons from being supplied to their adversaries. UK diplomat Chris Wright envisions a treaty that will benefit “US and UK troops, diplomats and contractors working in dangerous places” by denying weapons to insurgencies in places like Iraq and Afghanistan.
He concludes that “the only people who will not reap any rewards [of an Arms Trade Treaty] are those we wish weren’t armed and those who supply them.” Whether it’s realistic to expect that a treaty weak enough to allow the US and UK to export arms to whoever they want could be effective in stopping arms to their enemies remains to be seen.
In a recent demonstration of the UK’s dissonant policy on arms, one month after William Hague made an impassioned plea for an ATT that would require arms exports to be assessed “on the basis of respect for international humanitarian law and human rights,” David Cameron announced that the UK was considering bypassing an EU embargo in order to arm Syrian rebel groups, some of whom have committed war crimes.
At the UN General Assembly meetings in 2006 and 2008, a large majority of countries voted in favour of developing the ATT. Only one country voted against these resolutions – the world’s largest arms exporter, the United States. Two other big-six arms exporters, China and Russia abstained.
It was seen as vital for the success of the ATT to get the support of these major players, and in 2009 the incoming Obama administration provided the opportunity to get the US on board. However, the US levied a heavy price for its support.
The US would not accept a treaty that would interfere with its national security or foreign policy interests or hinder the “legitimate commercial activity” of the arms trade; nor would it accept any kind of international enforcement of the treaty.
Accommodating the demands of the US weakened the treaty’s crucial obligation to prohibit the export of arms when there is a risk they will be used to commit war crimes or human rights abuses, and it exempted ammunition and shells from the treaty’s record-keeping and reporting requirements.
Crucially, the US insisted that the treaty could only be adopted by strict consensus rather than a majority vote. This effectively gave the US or any other state the power to veto it, which made it even more difficult to negotiate a treaty that could be effective.
A weak treaty
The Control Arms coalition campaigned hard for a “bulletproof” arms trade treaty, but the final text is not bulletproof, literally or figuratively. The original wording from 2003 was relatively strong, but by the time the ATT was adopted by the UN General Assembly in April 2013, its provisions had been so diluted as to render it practically ineffective. The final text contains a number of serious loopholes and flaws, some of which are outlined below.
1. The treaty’s threshold for refusing arms exports is far too high
The treaty states that arms should not be exported if there is an “overriding risk” of serious violations of international humanitarian or human rights law. This word “overriding” is open to interpretation. It could be taken to mean that arms exports should only be stopped in extreme or exceptional circumstances, or that a state could decide that the risk of abuse was not enough to “override” the perceived benefits of the arms export.
For example, a supplier could decide that while a client country was likely to commit human rights abuses, that was not strong enough to override the client’s “right to self-defence” or “regional stability” or even the need to protect an important “strategic partnership”. This is particularly apposite for the UK, where the government’s drive to promote arms sales always overrides human rights concerns.
The original Control Arms draft said that arms transfers should be refused if they were “likely” to be used to commit serious violations. Later drafts raised the threshold to “substantial risk,” and in 2012 it was further raised to “overriding risk”. The NGOs tried hard to get that changed back to “substantial,” with support from many countries, but the US insisted that “overriding” must remain.
2. The treaty has no effective requirements for record-keeping and reporting
One of the selling points of an ATT was that it would “help introduce new levels of transparency and accountability” to an otherwise murky trade by requiring comprehensive record-keeping and public reporting of all arms transfers.
On this issue, the treaty has failed. Whereas the original draft required states to submit annual reports on arms transfers to be published by an international body, the final text only requires states to record a minimal list of arms exports that need not even include the type, model, quantity or value of the exports.
States are supposed to submit this minimal information to a UN Secretariat, but this information will not be published, and states are allowed to leave out anything they deem as “commercially sensitive or national security information.”
This represents a considerably lower standard of reporting than is currently carried out by some of the world’s largest arms exporters, including the UK, US and Germany – an outcome that Oxfam warned “risks undermining current best practice in transparency in the international trade in arms.”
Without proper reporting provisions, there will be no way to tell whether the treaty is effective in stopping any arms exports.
3. The treaty excludes certain types of weapons
The treaty only covers specific types of conventional weapons. The list excludes certain types of arms including surface-to-air missiles, armoured troop-carrying vehicles, light artillery, tear gas and, notably, drones. The Stockholm International Peace Research Institute (SIPRI) warned that this failure to reflect modern military technology made the ATT “likely to be a relic before it ever comes into force”.
While the treaty does mention ammunition and components, these are exempt from some of the treaty’s key provisions. At the insistence of the US, there is no requirement to keep records or report the export of ammunition or components. Furthermore, states are not required to regulate the import, transit, trans-shipment, brokering or diversion of ammunition or parts.
Given the key role that ammunition plays in sustaining conflict, this is a huge loophole. It also means that arms dealers will be able to avoid key regulations by trading in “knock-down kits” – kits of parts for assembly in the destination country – instead of whole weapons.
4. The treaty doesn’t cover all types of arms transfers
Arms transferred as part of a “defence co-operation agreement” – an arrangement whereby the military forces of two or more countries work together – are exempt from the treaty. Arguing for this loophole to be closed, Control Arms pointed out that “There is nothing to prevent States classifying all of their international arms trading operations as ‘defence cooperation agreements’ thereby circumventing the treaty’s provisions.”
Furthermore, whereas the original draft applied to all types of international arms transfers, the final text only covers arms sales, which means that it doesn’t apply to arms that are loaned, leased, bartered or transferred as gifts or as part of an “aid” package. (It was China that insisted on this, not wanting to be prevented from giving arms to its allies.)
Finally, the treaty does not cover licensed production agreements, whereby a country that owns the design to a particular weapons system grants a license to another country to manufacture that weapons system. This type of arrangement has been used by arms companies for decades as a way of avoiding arms embargoes.
5. There is no international assessment or enforcement
The responsibility for assessing the risk of an arms export is entirely down to the exporting country. There is a clear conflict of interest here: a country that wants to export arms will tend to decide that there is no “overriding” risk.
Furthermore, an exporter’s decisions are not open to international review and there are no legal sanctions for violating the treaty. The US made it clear that it would not accept the creation of an international body to enforce the ATT.
6. The treaty gives the arms trade legitimacy
One of the treaty’s core principles is “the respect for the legitimate interests of States to acquire conventional arms to exercise their right to self-defence… and to produce, export, import and transfer conventional arms”. It focuses specifically on stopping “illicit” trade. However, this distinction between the “legitimate” arms trade and the “illicit” arms trade is bogus.
The vast majority of international arms transfers, including those to human rights-abusing governments and conflict areas, are legal. Countries like the US, UK and Russia supply large quantities of arms to repressive regimes around the world, but the treaty leaves plenty of scope for them to declare these sales as “legitimate”.
Furthermore, by recognising the “legitimate interests” of states to acquire arms, the treaty privileges states at the expense of non-state actors such as stateless peoples and ethnic groups oppressed by their own governments.
For example, the treaty asserts the right of Israel, as a state, to acquire arms for “self-defence” but does not accord the same right to the Palestinian people who live under Israeli military occupation. In this way the treaty could help to reinforce a status quo in which powerful states militarily dominate marginalised populations.
The treaty also explicitly recognises “the legitimate political, security, economic and commercial interests of States in the international trade in conventional arms” (emphasis added). In the final vote at the UN, the Bolivian delegate abstained, deploring that “the ‘weapons and death industries’ would rest easy knowing that the Treaty favoured their economic interests,” adding that “priority had been given to profit over human suffering.”
In a treaty whose intent is to reduce the terrible harm caused by the arms trade, there should be no place for declaring huge swathes of the arms trade to be “legitimate”. As Campaign Against Arms Trade – a sceptic of the ATT – points out; “there is no such thing as a ‘responsible’ arms trade.”
Over-selling the treaty
The way in which the ATT was ‘sold’ to the general public generated expectations that the treaty “was never likely to fulfil,” according to Dr Robert Zuber, who represented Global Action to Prevent War at the UN negotiations.
Campaign literature frequently talked about the number of guns and bullets in the world, giving the misleading impression that the treaty was designed to reduce them. Amnesty argued that “the massive rise in arms transfers makes the case for controls more pressing than ever,” but the ATT was never intended to be a disarmament or non-proliferation treaty, and as Neil Cooper, Senior Lecturer in International Relations & Security at Bradford University points out, an ATT is “not incompatible” with rising arms sales.
Amnesty and Oxfam claimed that an arms trade treaty would save “millions of lives”, but it’s not clear how this could be possible. ATT advocates have been strong on talking about the terrible human cost of the arms trade, but weak on explaining how the treaty could realistically be expected to mitigate that cost. An oft repeated claim was that an ATT would prevent the kind of tragedy unfolding in Syria, but given how weak the treaty is, that doesn’t seem remotely realistic.
The damage done
The biggest danger of a weak arms trade treaty is that it legitimises business as usual. When countries and arms companies are criticised for supplying arms to repressive regimes, they will be able to claim that they are complying with the Arms Trade Treaty, as championed by the world’s leading human rights organisation.
Furthermore, as the treaty is weaker in some areas than existing arms export regulations, it could actually undermine current practice.
The treaty will undoubtedly be used to burnish the image of arms companies too. Already, the website of arms company BAE Systems, which supplies weapons systems to repressive regimes, talks about its support for the ATT under headings like “meeting high ethical standards” and “working responsibly”.
The treaty’s failure also comes at a cost to the movement that campaigned for it. Over the last decade, a huge amount of resources and effort was devoted to the Control Arms campaign. Over a million people signed petitions, and tens of thousands of activists were mobilised to lobby, demonstrate and publicise the campaign. Now that the UN has adopted a treaty that cannot fulfil the expectations that were created for it, grass-roots campaigners may become disillusioned with tackling the arms trade.
When the treaty was finally adopted by the UN General Assembly, the NGOs that had campaigned for it proclaimed it as a victory even though the final text still contained most of the loopholes that they had been strongly criticising only days before.
Oxfam took down a web page entitled “Arms Trade Treaty: It’s not good enough” and put up a new one describing the treaty as historic and momentous. Amnesty took out a full-page newspaper ad thanking its supporters for “making the dream of an International Arms Trade Treaty a reality.”
But the failure was discernible in the final paragraphs of the otherwise celebratory press releases. Having failed to get all conventional arms covered by the letter of the treaty, Amnesty urged states to apply “the spirit of the treaty” to the full range of arms. The director of SIPRI’s Arms Transfers Programme, tried to look on the bright side: “It’s not perfect,” he said, “but maybe it’s not completely broken.”
The treaty’s supporters have defended the ATT text as a starting point on which we can build in future. However, the treaty stipulates that no amendments can be proposed for at least six years, and as Oxfam pointed out before the vote; “Treaties with weak provisions – no matter how broad their support – rarely become strong over time.”
As for the arms exporters, they welcomed the treaty’s passage, confident that its prohibitions will not interfere with business as usual. Michael Aron, the British ambassador to Libya, tweeted the “fantastic news” of the ATT’s adoption shortly before greeting UK ministers aboard a warship sent to sell arms to the new regime in Tripoli.
Lessons to be learned
Perhaps the most important lesson, which had seemed self-evident to the treaty’s critics, is that if a piece of proposed arms control legislation has the support of the world’s biggest arms producing states and the support of the arms industry itself, then that’s a fair indication that the legislation will be useless or worse than useless.
The proponents of the ATT were well aware that “a weak treaty would be worse than no treaty” but they seem to have had no Plan B. It should have been apparent, at least in the last few months of the process, that it was not going to be possible to salvage a strong treaty from the negotiations. At that point, it may have been better for the NGOs to disavow the treaty so as to deny it legitimacy.
Campaign Against Arms Trade believes that no arms control treaty will be effective as long as governments continue to prioritise arms sales over arms control. They argue that to make a difference we need to focus on stopping government support for arms exports.
The adoption of an arms trade treaty by the UN represents both an impressive achievement and a huge failure for the Control Arms campaign. Perhaps the most appropriate words on which to end are those of the Control Arms campaign itself, taken from an October 2012 report:
“Ultimately, the ATT will be judged according to its success in preventing arms transfers that risk contributing to or facilitating human suffering. An ATT that does not serve to enhance human security will represent a hollow victory for all those who have advocated for a robust treaty.”