The Arms Trade Treaty (ATT)
The international arms trade is only partially governed by international law. The relevant individual agreements include the Mine Ban Treaty of 1997 and the Convention on Certain Conventional Weapons of 1980, which bans weapons that have indiscriminate effects or cause excessive harm (e.g. incendiary weapons or blinding laser weapons).
A legally binding document that comprehensively addresses the global trade in conventional weapons (including battle tanks, combat aircraft or small arms) was in fact put forward in July 2012 at a world conference sponsored by the United Nations, but it came to nothing. Not until 2 April 2013 did the UN General Assembly adopt the Arms Trade Treaty (ATT), with Resolution A/RES/67/234 B. An overwhelming majority of 154 states voted in favour of the ATT, with just three no votes and 23 abstentions.
The idea of international rules for the arms trade arose in the mid-1990s when a group of Nobel Peace Prize laureates around the Costa Rican Oscar Arias Sánchez began advocating greater responsibility in the arms trade. It marked the start of a long negotiating process, supported from the outset by non-governmental organizations that, in parallel, also made some progress at the policy level.
In 2006, the United Nations took up the Arias Sánchez initiative, and Resolution 61/89 was put before the Assembly, receiving a total of 153 yes votes, 24 abstentions and one vote against. The no vote came from the United States, a country that for various reasons has been very cautious when it comes to restricting the arms trade. One factor here is the Second Amendment to the US constitution, which is widely interpreted as the right of every US citizen to “bear arms”. Under President Barack Obama, however, Washington modified its position in 2008 and agreed to talks on the ATT, although only on the premise of the consensus principle, which in practice gives every country power of veto.
The very important question of what types of weapon should be covered by the Treaty was at the centre of a long and heated debate. Some countries wanted to limit the scope of an ATT to the seven categories of conventional weapons used in the United Nations Register of Conventional Arms: battle tanks, armoured combat vehicles, large-calibre systems, combat aircraft, combat helicopters, warships, and missiles. Other countries, including Germany, Italy and Poland, criticized this approach as being too narrow. The so-called 7+1 variation, by contrast, which comprises the seven UN register categories plus small arms and light weapons, was preferred by almost all states. Some countries, including Austria, Germany and the Netherlands, also argued for ammunition to fall under the ATT, but their view did not prevail. The negotiations also considered the inclusion of individual arms components as well as dual-use items. Dual-use items are machines and machine parts, but also software and specific technologies, that can in principle be used for both civil and military purposes. However, none of this found its way into the final text of the Treaty.
There was also a lengthy dispute over the type of transactions to be addressed by the ATT. The parties broadly agreed that a treaty must regulate arms transfers in the sense of the export and import of conventional weapons. Some disarmament experts also recommended the inclusion of loans, gifts, leases, re-exports, all forms of transit and technology transfer. It was also pointed out that stockpiling, production and production licensing (locally and in third-party states) are highly relevant to conventional weapons trading. Yet other voices cautioned against excessively inflating the scope of the agreement and succumbing to the temptation of trying to solve all the problems in one go. There was, however, broad agreement on not making the regulation of domestic-level arms trading an international treaty matter. This point was deemed particularly important for securing the support of the United States.
All this is linked to the question of what criteria should govern a prohibition of trade in weapons. Most states were in agreement that the criteria should be based on existing international law, not least the United Nations Charter. But many member states are also determined not to allow the Treaty to restrict their opportunities for producing, exporting and importing arms for legitimate purposes such as self-defence. The final treaty text expressly prohibits arms exports if the government of a supplier country has—at the time of authorization—knowledge of the recipient's intention of using the exported arms for genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against legally protected civilian objects or civilians or other war crimes defined in international treaties signed by the state concerned. There was also discussion of the form in which international cooperation and support for implementation should be included in treaty provisions. After all, formally adopting the ATT is much easier than implementing the provisions at the national level. This challenge makes it important for states with more experience and capacity in the control field to assist those without. The ATT, therefore, contains two articles that address this issue. In addition, a voluntary trust fund has been set up by the states parties from which a country, once applied for, can receive international assistance.
Although civil society was not consulted at every stage, the Treaty was adopted partly thanks to strong involvement and commitment on the part of non-governmental organizations.
A minimum of fifty states had to ratify for the ATT to enter into force, which happened on 24 December 2014. It is not realistic to expect the whole of the arms trade to change from one day to the next, but the ATT marks an important step in the right direction. For EU member states, the Treaty does not make much difference, because the EU rules are stronger than those stipulated under the ATT.
Sources and further information
BICC 11/2013
