The goal of this article is to examine and suggest proposals that could enhance the role of the international Arms Trade Treaty—presently in discussion at the United Nations—in the regulation of the international arms trade and in addressing the role of the legal trade in: a) providing the bulk of the arms used in armed conflicts, armed violence and human rights abuses; b) the excessive arming of developing countries; and c) the continuous unsettling of power balances in sensitive world regions, not least because of competition amongst arms-exporting countries.
No global regime exists to control the international trade of conventional arms.
The international Arms Trade Treaty (ATT), presently in discussion, is a potentially historical step to regulate this trade.
But the ATT in its current form lacks fundamental elements needed for a robust and effective regulatory framework.
The absence of a global regime to control international trade in conventional arms persists despite the fact that in the 22 years between 1989 and 2010, the world witnessed the outbreak or continuation of 131 international armed conflicts,1-3 involving the forces of 112 countries and 217 political opposition groups. An additional 392 armed intrastate conflicts between political groups took place in the same period across 55 countries.4 In these 22 years, 1.1 million battle-related deaths mounted for the international conflicts, and almost 140,000 for the intrastate conflicts. Government forces of 74 countries perpetrated one-sided violence5 against civilians, resulting in 1.2 million fatalities.
This estimate excludes millions more gun killings and injuries inflicted on civilians. It is estimated that 42 percent of global homicides6 are actually committed by individuals and criminal gangs using firearms, according to the UN Office on Drugs and Crime (UNODC). This is based on statistical returns from 108 countries (estimated to cover just over 50 percent of the world’s homicides). Thus, it is suggested by the UN that around 199,000 homicides of the estimated total of 468,000 homicides was committed using a firearm in 2010.
The root causes of the armed conflicts and other violence of the 1990s and 2000s are complex and no single factor can explain their outbreak and continuation. However, nearly all of the major armed conflicts fought in those decades involved territories located “south” of the “virtual border”7 that divides the affluent from the poor economies. (Throughout this article, we use “South” and “North” metaphorically.) South of this border, very few countries have a substantial domestic production of conventional arms.8 Most of these conflicts were therefore waged with conventional arms that arrived legally from the North or that were seized from government depots or forces. In fact, since 1990, only about two-dozen armed conflicts have been the target of a total or partial United Nations arms embargo.9 These embargoes were frequently violated. In other conflicts, where no universal ban existed, governments and parties continued to procure arms from abroad.
The geographic component to the figures on non-conflict civilian armed violence is also striking. Sub-Saharan Africa and Central and South America, including the Caribbean, were the most seriously affected by non-conflict armed violence, experiencing annual homicide rates of more than 20 per 100,000, compared with the global average of 7.6 per 100,000 population. Countries in Southern Africa, Central America, and South America—including Honduras, Trinidad and Tobago, El Salvador, Guatemala, Jamaica, South Africa, Lesotho, Colombia, and Venezuela—report some of the highest recorded rates of violent death in the world.
Regarding civilian-on-civilian armed violence, evidence points to patterns of officially tolerated proliferation of firearms mostly originating from foreign manufacture, but with local firearms and ammunition producers in increasing numbers of countries.
The Global Arms Trade
The recorded value10 of international transfers of conventional arms is approaching USD$100 billion annually; in 2010 it was around $80 billion. This figure is in addition to more than $120 billion in the trade of military services, such as construction and training, and dual-use technologies, such as sensors and lasers. There are presently around 40 countries with large-scale defense production capabilities and another 60 or so manufacturing arms and ammunition at a relatively small scale. This amounts to 52 percent of the 193 UN member states.
The five permanent, veto-holding, members of the UN Security Council—China, France, Russia, the United Kingdom, and the United States—accounted for more than 50 percent of total worldwide arms deliveries in 2010, or $45 billion, according to national and supranational reports on arms trade.
In other words, the guardians of world security are also the most prominent arms exporters.
The United States ranked first, with $19 billion in deliveries in 2010 and $21.3 billion the following year. In 2011, the United States arms manufacturers and dealers exported to 161 countries, and arranged direct government-to-government sales with 133 countries. Next in line came Russia, then the UK, France, and lastly China. Other prominent purveyors include Israel, Italy, Germany, Sweden, Spain, and South Africa, in total accounting for a further $18 billion in deliveries in 2010.10
The Southern demand for conventional arms has been an indispensable component of the arms business, and has helped to maintain the production lines of the North. The governments and arms manufacturers of arms-exporting countries have consistently induced customers in the developing countries (who have often actively colluded) to acquire armaments well beyond their reasonable defense or law enforcement needs. This is done by legal means such as credits for importing arms, security assistance and arms surplus programs, offsets policies and barter trade, or illegally by bribing government procurement officials or politicians. Developing countries’ share by value of world imports of major weapon systems fluctuated between 62 and 66 percent of the world total in the last twenty years,11 with an often appalling accumulation of major equipment and infantry weapons.12 This has undeniably had severe consequences on national budgets and debts, on the proliferation and endurance of armed conflicts and violence, and ultimately on the continuing violation of human rights and disturbance of regional balances of power.
Early “Great Power” Attempts To Control the Arms Trade
The earliest attempts by the old European Imperial Powers to restrict the international trade in conventional weapons from Europe to Northern Africa date back to 1890 and were linked to the abolition of the slave trade.13 After the First World War the victorious powers attempted to agree on a convention with rules to limit their international arms transfers to Africa, Turkey, and the Middle East, but the U.S. objected to supervision of the treaty by the League of Nations. A renewed attempt in 1925 to establish an arms traffic treaty with no supervisory body also failed through lack of support. In 1935 the Special Committee for the Regulation of the Trade in and Private and State Manufacture of Arms and Implements of War (hereafter the Special Committee) of the First World Disarmament Conference adopted the so-called “American Draft Articles”, a set of measures that included “defining the categories of arms to be regulated, requiring national licensing of exports, and compelling states to make public their arms transactions” and limit holdings of arms by states. The articles also proposed “a powerful international supervisory body, the Permanent Disarmament Commission.”13 However, other major military powers declined to join the U.S. initiative.
Following the Second World War, as the Cold War emerged, the U.S. and its allies set up the Coordinating Committee of the Consultative Group (COCOM) aimed to impose restrictions on the transfer of dual-use technology to the USSR and its allies. While the effectiveness of the COCOM on hampering the military technology development of the Soviet Union and its allies was at least questionable,14 it demonstrated that control on trade of sensitive goods could be enacted if there was the political will to do so. At the United Nations level almost nothing was done between 1945 and 1991 to establish international arms trade control systems or standards. The decision by 150 states in December 1990 to set up the UN Register of Conventional Arms as a transparency measure for seven categories of offensive weapons gathered support after the Gulf War, but the voluntary “rules of restraint” agreed by Permanent Members of the Security Council who had supplied most of the arms used in the Gulf War15 were vague.
The Arms Trade Treaty
The proposal in 1993 by four NGOs for a legally binding International Code of Conduct on arms transfers drew upon the European Union Guidelines of Arms Exports and the OSCE Principles on Arms Transfers. From 1995, the Code was promoted globally by a number of Nobel Laureates and NGOs,16 but international attention was focused on the prohibition of certain inhumane weapons of war, especially landmines, and on the UN Programme of Action on the illicit trade in small arms and light weapons. To popularize the treaty proposal, the principal NGOs changed its name to “Arms Trade Treaty” (ATT) and began the global Control Arms Campaign in 2003.
Following the invasion of Iraq, support for the campaign and idea of an ATT gathered pace among governments, leading to a benchmark decision approved by 153 votes (with only the U.S. against) in the UN General Assembly on 6 December 2006, requesting the UN Secretary General “to seek the views of Member States on the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms, and to submit a report on the subject to the General Assembly at its sixty-second session.”
Between 2007 and 2009, a record number of states submitted mostly positive views on the treaty and expert UN meetings discussed options.17,18 In December 2009 the General Assembly approved a formal treaty negotiation process and five UN preparatory committee meetings fed proposals to the UN Conference on the ATT throughout July 2012. The Chair of the UN ATT process, Ambassador Moritán, presented several draft papers on the main results of the discussions, and proposed detailed draft elements to be considered in an ATT. Representatives from the various nongovernmental organizations that campaigned for an ATT contributed substantially to the discussions of the preparatory committees with several studies, discussion papers, and presentations in side-events. They also advocated for more stringent rules on several issues, including respect of international human rights law and international humanitarian law. Ambassador Moritán initially presented a new draft treaty text but the Conference was unable to come to a final agreement on a modified version19 issued on July 26. On December 24, 2012, the General Assembly approved the proposal for a “final U.N. Conference on the ATT” to be held in March 2013.
The ratification of an ATT at the UN level and the recognition that the international arms trade must be regulated at a national level according to common global standards—for its “potential” role in armed conflicts, in severe violations of human rights, and in diverting scarce resources from economic and social development—would be an historic achievement in itself. However, the current lack of some fundamental elements in the proposed ATT could merely perpetuate the status quo. These elements excluded from the draft treaty are:
- International supervision over implementation of the ATT;
- “Ammunition and munitions,” “parts and components,” and “military technology” as part of the items in the definition of scope to which the ATT fully applies;
- Certain military equipment in the list of the proposed “Scope”;
- Regulation and monitoring of arms export-related financial and transport services;
- Definition of what constitutes “export”, “import”, “transit”, or “trans-shipment”;
- An obligation to publicize annual reports prepared by states on their arms trade, as well as a regulatory framework mandating what those reports contain;
- Mandated reporting on trade and transfers related to military industrial cooperation projects;
- A majority or qualified majority for amending the ATT. (A consensus is now required);
- Regulation of certain types of “internal transfers” of arms.
For the ATT to truly be effective, these exclusions must be addressed.
Further Steps Needed for an Effective and Robust ATT
It has always been considered utopian to suggest any fundamental change in the international system. More and more one wonders, however, whether there is anything so basically unrealistic as “realpolitik,” as the traditional strategy of national egotism, national armaments, alliances, balance of power, deterrence, challenge and response. (Charles Yost)20
To make the ATT adequate to the complex frameworks in which conventional arms transfers occur requires realism as well as vision. The fact that some states prefer pretense to serious regulation is not enough for the creation of a robust and effective ATT. Without restating everything that has already been proposed over the past two decades about the need for legally binding criteria for arms transfer decision-making that are derived from international law, the challenge is also to develop and shape international arms trade regulation to suit future contexts. The following considerations stem from a reflection on the many contributions that organizations and individuals, including the authors, have made during recent years to improve proposals for the ATT. These considerations are intended for an ATT that could be pragmatically engineered to achieve the stated goals of the draft treaty in a fast-changing world.
The need for an international mechanism with the power to supervise implementation of the ATT’s provisions. As reported above, the Special Committee in 1934 outlined the need for “a powerful international supervisory body, the Permanent Disarmament Commission.”13 It was envisaged that the Commission would help verify the limitations and reduction of national arms holdings, as well as monitor the international trade. What seemed obvious at that time was that an international agreement could not be enforced by simply leaving the task and its policing to the states themselves.21 Attempts by Amnesty International and other Nobel Peace Laureates to float proposals for an international verification mechanism for the treaty were not successful.22 A fair portion of the proposed ATT’s provisions are already in force at regional or state levels but are sometimes either violated by the very authorities in charge of their implementation or else ignored when special interests or supposed national security issues are involved. A Permanent Disarmament Commission could function as an inspection agency, as in other international treaties, and could have the power to propose sanctions on states found ignoring their treaty obligations.
The need to fully include in the treaty’s scope “munitions”, “ammunition”, “spare parts and components”, and “military technology.” A rifle without ammunition is a high tech club. Common sense dictates that munitions and ammunition be included in the ATT for it to be effective, as has long been demanded by NGO proponents. Currently, states regulate the international trade of, say, iron, wood, or plastic, but according to several states (including the U.S.) it is too sensitive and difficult to fully regulate and report on the international trade in ammunition under the ATT. Yet the U.S. has national regulations on the import and export of ammunition. Similarly, some states argue for the need to exclude from the ATT spare parts and components or technology—the systems that enable production and basic functioning of conventional arms.
The need to broaden the Scope of the ATT. Excluded in the present ATT draft, as pointed out by NGO proponents, are certain categories of equipment and technologies such as military vehicles, transport aircraft, military training aircraft, robots, drones, optical and electronic devices used in the coordination of combat fields or combat theaters, dual-use items used in cyber wars, and equipment used by security forces. Exclusion of these from a future ATT means willfully turning a blind-eye to the reality of armed violence and warfare: armed drones are currently used for extra-judicial killings,23 and military training aircraft can carry weapons whilst some are specifically designed for counter-insurgency operations.
The need to add other services. In addition to “brokering,” the ATT should include financial and transport services. These activities are not only essential to the actual transfers of conventional arms, but also leave a physical trace that may serve to verify the contents, their value, and the time of the transfers, beyond that which is declared by private or public entities. The authors of this article have reported extensively since 1999 on the importance and usefulness of monitoring these services for arms control purposes.8 The ATT should require states to register finance providers engaged in arms provision activities operating within their territory, as well as require licensing or authorization of each proposed finance provision activity. Also mandatory should be the registration of transport service providers engaged in arms transport operating within their territory, along with the notification of relevant authorities regarding each proposed transport service provision activity. Finally, transport service providers should be required to maintain comprehensive and verifiable documentation, including cargo manifests, airway bills, bills of lading and invoices, which at a minimum must contain details of the export authorization, the consignee/consignor, the end-user, and the relevant customs Tariff codes identifying each transported item.
The need for clear definitions of “export”, “import”, “transit”, “trans-shipment” and “transfers.” Strictly speaking, “export” or “import” are terms related to commercial activities and do not exhaust the definition of “international transfers.” The concept “international transfers” includes government-to-government deliveries and deliveries as the result of grants, gifts, loans, barter trade, excess arms programs, and so forth. As frequently pointed out by Amnesty International and others, all of these various types of “transfers” need to be included in the ATT. For instance, excluding government-to-government deliveries from the ATT would render a considerable amount of international arms transfers outside of the ATT’s cover. In 2010, the United States Government Accountability Office reported that nearly 41 percent of the international arms transfers by the U.S. were government-to-government deliveries.24 Moreover, the draft text does not properly address customs regulations relating to transit and trans-shipment, as it advocates measures that are either already universally in force or cannot be performed by the state in which a transit or trans-shipment occurs without revision of internationally accepted and regulated practices.8 An enhanced ATT should include a completely revised provision on transit and trans-shipment in order to include the addition of other customs practices that are relevant for arms trade control.
The need for enhanced transparency and reporting. Article 10 of the ATT draft text allows states the freedom to record and report their arms trade “according to their national laws.” States may “exclude commercially sensitive or national security information.” The current proposal does not consider that the majority of states do not publish national reports on their arms exports and imports, and in several states the national regulations on transparency are minimal, include ineffective requirements, or are purposely weak, thereby reducing record-keeping to an exercise in creative administration. More often, verification mechanisms and law enforcement are under-funded or non-existent. If certain transfers are allowed to go unaccounted for under the guise of commercially sensitive or national security information, the ATT will provide an excuse for governments to hide information on the transfer of arms used in crimes, human rights violations and the excessive accumulation of conventional arms. Only a firm, robust, and mandatory framework for reporting can serve the purpose of a confidence-building ATT; vague, incomplete, unverifiable or “censored” information will not.
The need for a workable amendment process. Due to the monumental task of reaching an agreement among the 193 members of the United Nations, no international treaty can be complete or adequate from the beginning. Therefore amending the treaty should be made relatively easy to ensure that the treaty can be strengthened—for example, in its application to the fast evolution of conventional weapons technology. In article 20 of the draft treaty text regarding amendments, the “consensus” requirement should be substituted with a “majority” or “qualified majority” requirement. In the “consensus” environment, it takes only one state to disagree with proposed changes to indefinitely delay a process of amendments considered necessary by a large majority of other states.
The need to include certain types of “internal transfers.” The ATT draft text excludes “internal transfers”, i.e. “movement of conventional arms by a State Party or its agents for its armed forces or law enforcement authorities operating outside its national territories, provided the conventional arms remain under the State Party’s ownership.” The exclusion of these movements seems consistent with a treaty that regulates “international transfers”, i.e. transfers in which the ownership of the items changes nationality. However, if “internal” arms transfers to warehouses, depots, military bases, and units located in other countries are not reported and controlled, there will be a significant loopholes and distortion in the assessment of the military balance of a certain area or region. Several prominent arms-exporting countries are supposed to explicitly record equipment sent abroad for use by their troops as exports (or authorization to temporary or permanent exports). Internal transfers should be recorded at least for war-related material and peace-keeping operations. In fact, amazing quantities of armaments have already been abandoned by retreating troops during wars abroad, seized by non-state actors or diverted—because of negligence or corruption—to unauthorized users, from DR Congo to Ivory Coast, and Afghanistan to Iraq.
Due to the uneven economic development of nations, the regional balance of power constantly changes and the realpolitik sees the arms trade as a means to achieve a military balance and contribute to peace. Unfortunately, in reality the spiral never ends and no real stability has ever been achieved by an arms race to the ever-elusive military equilibrium.
Within a reasonable timeframe, the ATT should include not only the provisions detailed above, but also that the ATT Secretariat or an ATT Permanent Disarmament Commission actively and periodically promotes arms trade ceiling measures aimed at progressively lowering the volume of arms traded in each region.25 This was the vision in the 1930s that failed, later partly achieved in Europe at the end of the Cold War. It can and should be revived and improved through mutual acceptance of limits and multi-lateral agreements on the model of other international treaties. The ATT could then be considered the first step in the direction of disarmament, not just regulation.