A banner year for conventional arms control? The arms trade treaty and the small arms challenge.

Meyer, Paul

THE CONTROL OF CONVENTIONAL ARMS HAS OFTEN SEEMED THE POOR COUSIN of the global efforts to control weapons of mass destruction (WMD). Since the advent of the atomic era, the focus of arms control and disarmament activity has been overwhelmingly on nuclear weapons and their lesser, if still ugly, stepsisters of biological and chemical weapons. The initial multilateral arms control agreements concerned themselves with limits on the testing of nuclear weapons and, shortly thereafter, with their nonproliferation (e.g., the Nuclear Nonproliferation Treaty of 1968). Bilateral US-Soviet/Russian arms control arrangements also predominantly dealt with the reduction of strategic nuclear forces and restraints on deployments of defenses against (nuclear-tipped) ballistic missiles. Efforts to reduce major conventional weapon systems were also taken up in the 1980s in the context of negotiations between the opposing alliances of NATO and the Warsaw Pact, eventually culminating in the Treaty on Conventional Forces in Europe (CFE Treaty) of 1989. This treaty provided for a massive reduction in the conventional forces that had confronted each other for years in Central Europe and established a new, far more stable security order on the continent. Even the CFE Treaty, however, tended to be overshadowed by other major disarmament agreements concluded in those heady post-Cold War days: the Intermediate Nuclear Forces Treaty (1987), Chemical Weapons Convention (1993), Comprehensive (Nuclear) Test Ban Treaty (1996), and various US-Russian bilateral strategic nuclear arms accords of the 1990s and early 2000s (e.g., the Strategic Arms Reduction Treaty and the Strategic Offensive Reductions Treaty).

From one perspective, the focus on WMD and nuclear weapons in particular is understandable. These after all are weapons that have a capacity for apocalyptic destruction. However, given the prevailing taboo on WMD use (not since 1945 for nuclear weapons, and only a handful of incidents involving chemical weapons), the impact on humans is more a grave potential than a painful reality. Conventional arms, including by this term not only the major weapon systems such as tanks, artillery, and armored combat vehicles but also the portable small arms and light weapons (SALW), are the tools of daily destruction around the world. It is this category of armament that, as former UN Secretary-General Kofi Annan once described, are the real weapons of mass destruction. (1) These are the weapons that are actually employed in conflicts and that take the greatest toll, not only of combatants, but also of civilians willfully targeted or simply caught in the cross-fire.

The year 2013 was marked by two significant achievements in the realm of multilateral conventional arms control. The first was the adoption by the UN General Assembly in April of the Arms Trade Treaty (ATT), the first legally binding agreement to establish common standards for the international transfer of conventional weapons, including SALW. The second was the unanimous adoption by the UN Security Council of Resolution 2117 at its meeting of 26 September addressing the SALW issue as a threat to international peace and security. This is only the second time that the Council has passed a resolution on this theme. There is reason to celebrate both of these achievements but also to subject them to some critical scrutiny as to what these actions by the General Assembly and the Security Council, respectively, actually mean for dealing with the problems raised by conventional weapons. To better judge the significance of the 2013 developments, it is necessary to place them in their historical context.

Past UN Action on Conventional Arms

The UN came relatively late to addressing the security and humanitarian challenges posed by conventional arms and, especially, SALW. The UN Register of Conventional Arms was established in 1991 to attempt some transparency over international trade in major weapons systems, but it did not include (and still does not) provision for SALW to be included in the same manner as the seven other categories of weaponry. In the mid-1990s the UN began to consider the SALW issue via the mechanism of a UN Panel of Governmental Experts, a common initial step by the UN when confronted with a new issue area. The 1997 panel report had several recommendations, including the suggestion that "the UN should consider the possibility of convening an International Conference on the Illicit Arms Trade in All its Aspects." (2) This recommendation was subsequently taken up by the UN and led to a major conference in July 2001 that produced by consensus the "Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects." (3) If this title strikes readers as awkward, it is for a reason. The title represents a compromise between those states that wanted to deal only with the "illicit" trade in SALW and those that believed there were elements of the legal trade that warranted attention (hence, the "all its aspects" element). The Programme of Action (PoA) also took the form of a politically rather than legally binding agreement, reflecting the aversion of many states at that time to enter into any treaty limitations regarding SALW.

The contending views and delicate balances that the PoA had to reflect is evident in its lengthy (twenty-one-paragraph) preamble in which a mixed bag of concerns and principles, from child soldiers and gender-based violence, to the inherent right of individual or collective self-defense were enumerated. Telling of the general tentativeness of UN member states' engagement on the SALW file at that time was the preambular recognition that "these efforts are without prejudice to the priorities accorded to nuclear disarmament, weapons of mass destruction and conventional disarmament." (4) The voluntary measures that were specified in the PoA at the national, regional, and global level constituted a relatively modest set of actions to begin to reduce the risk represented by illicit trafficking, excessive accumulations, and diversion from poorly controlled stockpiles. Perhaps most significantly the PoA provided for a regular follow-up process, including periodic review conferences as well as biennial meetings of participating states.

Control of Arms Transfers: Toward an ATT

A key concern with the PoA on the part of a large number of states was the continued absence of any agreed controls or common standards for the licit as opposed to illicit trade in conventional arms. Although various states had developed their own export laws and control mechanisms governing conventional arms, these were undertaken on a national basis without any overarching global governance. This absence was acute given the growth in international conventional arms transfers. According to Stockholm International Peace Research Institute (SIPRI) research, the volume of such transfers was 17 percent higher in the period 2008-2012 than in 2003-2007. (5) In 2006 a group of states led by the UK took the first cautious step toward an arms trade treaty that would establish common international standards for the import, export, and transfer of conventional arms. UN General Assembly Resolution 61/89 adopted on 18 December 2006 authorized the establishment of a group of governmental experts that would begin in 2008 to examine "the feasibility, scope and draft parameters" for such a treaty and to report back in 2009. Even this measured pace in studying the possibility of an ATT was too much for some states, and the resolution elicited one negative vote (the United States) and twenty-four abstentions.

The arms trade treaty process had developed its own momentum and, with the impulse of supportive recommendations from the group of governmental experts, the General Assembly was ready in its sixty-third session in 2008 to authorize the establishment in 2009 of an open-ended working group that would consider elements of the experts' report "where consensus could be developed for their inclusion in an eventual legally binding treaty" (Resolution A/RES/63/240). The results of the open-ended working group further contributed to the goal of initiating a negotiating process. This was duly accomplished during the General Assembly's sixty-fourth session when the open-ended working group process was transformed into a preparatory committee for a month-long UN conference on the arms trade treaty to be convened in 2012 with the objective "on the basis of consensus, to achieve a strong and robust treaty" (Resolution A/RES/64/48).

The requirement for consensus for these negotiations was not welcomed by all states, which were acutely aware of the protracted paralysis that had been introduced into the work of the Conference on Disarmament (ostensibly the sole negotiating forum for multilateral arms control and disarmament treaties) by strict consensus procedures. This concession to consensus procedures was viewed, however, as the price to be paid for obtaining the participation of those states that were cool to the whole ATT effort.

The negotiations proceeded apace under the skilled chairmanship of Ambassador Roberto Garcia Moritan of Argentina, and it seemed in the waning days of the conference in July 2012 that a compromise text had emerged that could command collective approval. At the eleventh hour, however, the US delegation (which under the Barack Obama administration had recently moved from solitary opposition to the entire ATT endeavor to a cautious engagement in it) announced that it would not be in a position to agree to the draft treaty text because it required more time. This US objection appeared to reflect more considerations of electoral timetables (the administration was loath to draw more fire from domestic opponents of the ATT prior to the presidential election that fall) than substantive problems with the draft treaty. Of course, the US objection allowed other states that were not enthusiastic about the ATT to avoid having to contest it themselves at that stage.

The ATT proponents, although disappointed with this setback, were not deterred from pushing ahead toward the goal. Although the July 2012 conference had been the intended termination of the negotiating process, ATT supporters obtained an extension via a resolution at the General Assembly's sixty-seventh session providing for a final session of the conference, 18-28 March 2013, and authorizing the president of that session to report on its outcome to the General Assembly as soon as possible after it had concluded. The president's baton had now passed from Ambassador Moritan to Ambassador Peter Woolcott of Australia who presided over the final conference and steered the negotiations to closure once again on a draft text, a text that in his view "could not have been any stronger while still holding the disparate interests in the room together." (6) However, on this occasion, the denial of consensus approval for the treaty text originated not with the United States, but with the delegations of Iran, North Korea, and Syria. ATT supporters were not going to be stymied again and, taking advantage of the president's prompt report of the results of the final conference, resorted to the adoption of the draft treaty text on 2 April via General Assembly Resolution A/RES/67/234B, which was passed by a vote of 154 for, 3 opposed (Iran, North Korea, and Syria), and 23 abstentions. Among those abstaining on the resolution were major states such as China, India, Indonesia, Egypt, Saudi Arabia, and Russia.

The ATT text was open for signature on 3 June 2013 and, as of October's session of the General Assembly's First (Disarmament and International Security) Committee, 114 states had signed the treaty and 8 had ratified it. This is an impressive early show of support for the ATT and should put it on a trajectory to obtain the fifty ratifications required for the treaty to enter into force within the next year or two.

The ATT Outcome

Although the ATT's gestation was a lengthy one and its labor not without some discomfort, what is the nature of the result? What can be expected of the ATT when it enters into force as a tool for curbing excesses or abuses of the international trade in conventional arms? In examining the treaty text one is first struck by the lengthy preamble, which sets out various principles that states believed important to express in order to contextualize the treaty. These range from affirmation of the right of self-defense and legitimate interests of states to acquire conventional arms to that end, to concerns over the impact of arms on human rights abuses including gender-based violence. This melange of principles and concerns is suggestive of the disparate views and priorities held by the UN membership over the issue of conventional arms and access to them. The scope of the ATT covers the major weapons systems of the UN registrar, but also SALW. Ammunition and parts are to be regulated through national control systems that states parties are to establish.

The constraints that will apply to exports or transfers of these arms are twofold: prohibitions in some cases and authorizations subject to risk assessments in others. The prohibition (Article 6) covers: (1) states under Security Council Chapter VII sanctions in particular arms embargoes; (2) states that have violated their international obligations under international agreements relating to illicit trafficking in conventional arms; and (3) the use of these arms by states in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions, or other war crimes. The latter prohibition applies when the supplier state has knowledge at the time of authorization that such illegal use of the arms will occur.

If an export is not subject to prohibition, there still exists an obligation for the supplier state to undertake a risk assessment prior to transferring conventional arms. This assessment as set out in Article 7 should take into account whether the arms would contribute to undermining peace and security, or could be used to commit or facilitate serious violations of international humanitarian or human rights law, or would violate international agreements relating to terrorism or transnational organized crime. The treaty provides for the possibility of measures to mitigate the risk, but requires the state after conducting its assessment to deny authorization of the export if that state determines that there is "an overriding risk of any of the negative consequences" enumerated above. There is provision for information sharing between the exporting and importing states as well as with transshipment states concerning the authorization decisions. These decisions remain exclusively the prerogative of the states parties.

These core articles on export controls are supplemented by articles requiring states to take measures to prevent diversion of arms, to regulate brokering activity, and to maintain records (for a minimum of ten years) regarding export/import transactions. The ATT (Article 13) also creates a reporting mechanism that foresees annual reports on authorized and actual exports/imports and encourages rather than requires states to include certain key data in these reports. International cooperation among states in implementing the treaty is invoked, although caveated as "consistent with their respective security interests and national laws." International assistance to developing states to build ATT-relevant capacity is to be proffered via a voluntary trust fund and a degree of institutional support for the treaty is envisaged through the convening, within a year of entry into force, of a conference of states parties (which will determine the frequency of future conferences) as well as the establishment of "an adequately staffed" secretariat to assist in treaty implementation. The treaty is to have unlimited duration, although with a right of withdrawal for any state party on ninety days notification.

Assessing the Utility of the ATT

Like any agreement that is the product of years of consensus-based negotiation, the ATT represents a compromise between divergent poles of state preference. For civil society, which actively championed the ATT for years and whose supporting role is formally recognized in the treaty's preamble, the text is generally viewed as a good foundation. As the key nongovernmental organizations indicated in their statement to the General Assembly's First Committee: "The ATT is a success for us all. For the UN, for governments and for civil society." At the same time, it was stressed that all concerned now faced the "most important stage of ensuring effective treaty implementation." In the eyes of the states that had supported the ATT from its inception, the assessment of the result was also positive. In the words of the New Zealand ambassador for disarmament, "The ATT will move us closer to achieving our shared goal of mitigating the serious security and humanitarian consequences of this trade, particularly through its coverage of small arms and light weapons." The South African delegation voiced similar sentiments, noting that the ATT "fills a glaring gap that existed in the global conventional arms control system." (7)

Although the majority of UN member states favor the ATT, there is a significant minority of states that remain reserved toward it. A resolution at the First Committee session calling on all states to sign and ratify the ATT at the earliest possible date was adopted by a vote of 141 for, none opposed, and 28 abstentions. The dissenting minority not only consists of the outright opponents of the ATT (e.g., Iran, North Korea, and Syria), but also a variety of other states with varying degrees of misgivings about the treaty. For some, the reservations regarding the treaty reflected concern over its ultimate adoption through a General Assembly vote rather than by consensus, as the negotiating procedures had specified. The concern here was the danger of setting a precedent for circumventing consensus-based procedures that some states believe are essential to protect their national interests in international security matters. For others, it was dissatisfaction with the treaty text and the fact that elements they had supported were not included in it. Typical of these reservations were the comments of the Egyptian representative in the First Committee who criticized the absence of definitions for important terms, the lack of "collective mechanisms to identify the applicability of agreed criteria," and the failure to include "the crimes of aggression and foreign occupation" as part of the assessment procedure. India complained that the ATT "was weak on terrorism and non-state actors which found no mention in the specific prohibitions of the treaty." Others may have identified with the concern voiced by the Iranian representative that the ATT, while safeguarding the rights of exporting states, was prejudicial to the interests of importing states. He decried that "the most basic and inherent rights of importing states are subject to the discriminatory judgement and extremely subjective assessment of the exporting states." (8)

Given the majority support that the ATT enjoys, it is likely to enter into force in the relatively near future, but the significance of the dissent of states important in the global arms trade does raise concerns as to the prospects of the ATT in effectively combating abuses of that trade. The disapproval of key exporting states (Russia and China) as well as leading importing states (Pakistan and India) has the potential of diluting the positive effect of the ATT's introduction on conventional arms trade. The role of the United States on the ATT's impact is also uncertain. After years of solitary opposition to the very concept, the United States, under the Obama administration, gradually shifted to a role of support for the negotiations and was an early signatory of the resulting treaty. At the same time, domestic criticism of the ATT from some quarters of the US political scene has been evident from its inception and remains virulent. On 15 October 2013, less than a month after the United States signed the ATT, a group of fifty US senators sent a letter to the president opposing ratification of the treaty. In the words of one member of this group, Democratic Senator Joe Manchin of West Virginia: "Under no circumstances should this country surrender our gun rights to the control of the United Nations." (9) Although such a view is not consistent with the letter or spirit of the ATT, it nevertheless reflects a strong current of prejudice against the ATT that will be difficult to overcome (if the Obama administration even tries to) and is likely to prevent US ratification of the treaty for the foreseeable future.

The SALW Angle

As noted earlier, one of the major perceived achievements of the ATT was its express inclusion of SALW in its scope. This had been a long-standing objective of many states in the developing world that had suffered the consequences of conflicts fueled by SALW. The Nigerian statement to the First Committee on the ATT stressed this primordial point: "Struck by the reality of mindless mayhem and debilitating acts of armed violence, Member States forged an uncommon stance to provide leadership in addressing gaps seen in the transfer of all conventional weapons, not the least the problems of the illicit acquisition, transfer and use of SALW. Need I underscore that SALW are responsible for more than half a million deaths each year." (10)

It is estimated that there are some 875 million SALW in the world, and they are the principal weapons actually employed in the wars and banditry that plague many countries. Getting a handle on the SALW component of the conventional arms trade has long been an aim of both disarmament campaigners and states active in support of human security. However, there also have been powerful forces within the international community that have opposed controls on SALW flows. Illustrative of this opposition is the fact that, although proposals to include a category for SALW in the UN Register of Conventional Arms have been put forward for over a decade, there is no consensus on the part of member states to do so. Although the SALW PoA has now had the benefit of several biennial meetings of states parties and two review conferences, the continuing differences over priorities and interests are visible in the outcome documents from this process. In examining, for example, the implementation plan 2012-2018 that was adopted at the second review conference of the PoA held in 2012, one is struck by the heavy conditionality evident on the "action" items states are to undertake. The caveats of "to the extent possible," "as appropriate," "when necessary," "as needed and appropriate," "when in a position to do so," and so forth are replete throughout the document and provide ample political cover for states that would prefer to do little or nothing on the measures. Civil society monitors continue to critique the spotty record of states in fulfilling the provisions of the PoA, highlighting how actions such as Libya's amassing of excessive stores of SALW and their subsequent looting and trafficking have had major destabilizing impacts on neighboring states like Mali.

In this context of general neglect and checkered implementation, the adoption by the Security Council on 26 September 2013 of Resolution 2117 regarding SALW is a welcome if hardly decisive act. This action is only the second time that the Council has adopted a resolution on SALW and, arguably the first time it has done so in a generic fashion (the previous Resolution 1467 of March 2003 was focused on West Africa). The resolution sets out some crucial observations in its lengthy preamble, for example expressing its grave concern that "the illicit transfer, destabilizing accumulation and misuse of small arms and light weapons in many regions of the world continue to pose threats to international peace and security." It recalls that SALW "fuel armed conflicts and have a wide range of negative human rights, humanitarian, development and socio economic consequences, in particular on the security of civilians in armed conflict, including the disproportionate impact on violence perpetrated against women and girls." There are also positive references to the Responsibility to Protect concept and the significant role of civil society, alongside states in combating abuses of SALW. The resolution contains two rather cautious paragraphs on the ATT, "acknowledging" its adoption and "looking forward" to its future contribution as well as urging states "to consider signing and ratifying" it.

The operational section of the resolution, however, adds little in reality to the commitments already undertaken by subscribing states of the PoA or UN system actors. The Security Council reminds states of their obligation to comply with Council-mandated arms embargoes (Operative Paragraph 2) and reaffirms its intention to take "appropriate measures when needed, to strengthen arms embargo monitoring mechanisms" (OP6). The Council reiterates that UN peacekeeping operations may "if deemed necessary by the Council" assist host governments in various ways with SALW-related problems and programs (OP4 and OP5). The remaining paragraphs are essentially exhortations to member states and other parties to continue their efforts on behalf of SALW goals. The resolution concludes with the Council's standard (if amusingly ambiguous) phrase "Decides to remain seized of the matter."

Conclusion

Given the dry season that multilateral arms control and disarmament has been experiencing, the adoption of the ATT in April 2013 merited celebration. The support that it enjoys by many states and civil society augurs well for an early entry into force and sustained attention to its implementation. The fact that several major exporting and importing states currently remain on the sidelines, however, does cast a shadow over the future prospects of the ATT. It remains to be seen whether, with the right peer pressure and demonstrable benefits from the ATT, some of these holdouts may reconsider their position over time. The inclusion of SALW in the scope of the ATT is clearly one of its strongest features, although again the real value of this inclusion will emerge only with ATT implementation and subsequent assessments as to the efficacy of the transfer control system that it introduces. At a time when the UN efforts to deal with the SALW challenge may be running out of steam, it will take more than the exhortations expressed in Security Council Resolution 2117 to reenergize efforts to realize the SALW PoA. In the near term, the ATT is likely to prove the more productive and sustaining contribution toward some tangible progress on mitigating the negative consequences of SALW proliferation and misuse.

Notes

(1.) "Report of the Secretary-General to the Millennium Assembly," UN Doc. A/54/2000 (26 March 2000), par. 238.

(2.) "The Panel of Governmental Experts on Small Arms," UN Doc. A/52/298 (27 August 1997).

(3.) "Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects," UN Doc. A.CONF.192/15 (20 July 2001).

(4.) Ibid., par. 17.

(5.) Paul Holtom, Mark Bromley, Pieter D. Wezema, and Siemon T. Wezeman, "Trends in International Arms Transfers, 2012," Stockholm International Peace Research Institute Fact Sheet, Solna, Sweden, March 2013.

(6.) Peter Woolcott, "The Work of the Final UN Conference on the Arms Trade Treaty," statement to the First Committee, UN General Assembly, sixty-eighth session, 23 October 2013. This and other national statements delivered at the First Committee discussion of conventional weapons, 29-30 October 2013, and cited in the article can be accessed at www.reachingcriticalwill.org.

(7.) "The Panel of Governmental Experts on Small Arms."

(8.) Ibid.

(9.) Senator Joe Manchin, cited in 15 October 2013 press release issued by Senator Jerry Moran in connection with conveyance of a letter to President Barack Obama on behalf of fifty senators, www.moran.senate.gov/public/index.cfm/news.

(10.) "The Panel of Governmental Experts on Small Arms."

Ambassador (Ret.) Paul Meyer spent thirty-five years in Canada's Foreign Service with diplomatic assignments in Oslo, Moscow, Brussels (NATO), Washington, DC, and Tokyo. From 2003 to 2007, he served as Canada's ambassador and permanent representative to the United Nations and to the Conference on Disarmament in Geneva. He is currently an adjunct professor of international studies and fellow in international security at Simon Fraser University and a senior fellow with the Simons Foundation, both in Vancouver.