Background

On April 2nd, in an act described as "historic", the UN General Assembly adopted a final text of an Arms Trade Treaty (ATT). The resolution passed by an overwhelming majority of 154 states (including Israel) against only three objectors (Iran, Syria and North Korea). Twenty-three states abstained in the vote, including Russia and China.

The resolution finalized seven years of multilateral negotiations under the auspices of the UN for a comprehensive regulation of the international trade in conventional arms. In July 2012, a previous conference failed to achieve an agreement. Subsequently, The UN General Assembly (GA) decided to convene another "final" conference, which held its deliberations last March. This time, too, the efforts to achieve consensus[1] failed, however, the President of the conference brought to the GA a draft he described (according to a UN communique) as "… a compromise.  It represented the broadest possible input and would make a difference to the broadest range of stakeholders, notably by setting up a forum — the conference of States parties — for transparency and accountability."

What is the innovation and importance of this treaty?

International arms trade is estimated at seventy billion US dollars a year.

On the one hand, the arms trade allows states to fulfill their legitimate needs to acquire the arms essential for their self-defense, without investing in domestic research, development and manufacture. Such an investment is not always within the economic or technological ability of importing states, considering their national priorities. For arms exporting states, arms trade is not just a source of economic gain and jobs for local employees. Arms export allows them also to reduce the cost of the weapons needed for their own self-defense.

On the other hand, there is no doubt that the international arms trade also contributes to igniting new armed conflicts, fuels existing conflicts and produces much human suffering due to atrocities facilitated by it.

Regulating this trade is not a new idea. Article 26 of the UN Charter stipulates, among the responsibilities of the Security Council, that it should formulate plans for the establishment of a system for the regulation of armaments in order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world's human and economic resources.

Arms were the issue of many treaties and international agreements since the Second World War: some of these treaties absolutely forbade the use of certain weapons or added to a previous prohibition on use a prohibition on development and stockpiling (such as chemical and biological weapons). Sometimes the focus is on preventing proliferation of certain weapons to countries not already in possession of them at a determined date (the Treaty on the Non-proliferation of nuclear weapons – NPT, for example). Other conventions and their protocols apply restrictions as to the use of certain conventional weapons or define technical requirements for their manufacture. These are designed to decrease the probability of loss of civilian lives, or to prevent unnecessary suffering from combatants (for instance, land mines and incendiary weapons in protocols II and III of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW)). International treaties may also limit the amount of certain weapons in the possession of a state party at large or in a certain area, defined as a demilitarized zone or a limited force zone (such arrangements are part of the peace treaty between Israel and Egypt).

The diversity of limitations just described did not include, to this day, a global and comprehensive regulation of the manner of trading conventional weapons. Limitations aimed at preventing them from falling into hands that might use them to commit crimes, whether war crimes, crimes against humanity, terrorist attacks, violations of fundamental human rights or "ordinary" criminal acts, such as drug trafficking and human trafficking.

The closest international instrument designed to apply standards in this sensitive issue is the Wassenaar Arrangement.  This arrangement applies to the export of arms, technologies and dual-use materials (materials that have the potential to be used both for civilian and military purposes).  State Parties are required to report on the export of arms, materials and technologies, included in detailed control lists, to non-party states. Furthermore, state parties share information as to states where receiving export of arms may raise concerns for international peace and security. However, only forty-one states participate in the Wassenaar Arrangement. Though many significant arms exporter states are included (such as the US and Russia) many other significant exporter states are not (such as China[2]).  Furthermore, the arrangement deals only with arms export and does not regulate arms import or transfer. Last but not least, the states participating have wide discretion in the implementation of the Wassenaar Arrangement. Different standards are drafted as recommendations or best practices and not as binding and enforceable criteria.

Which "arms" are included in the treaty?

The treaty applies to conventional arms of these categories:  battle tanks; armored combat vehicles; large-caliber artillery systems; combat aircraft; attack helicopters; warships; missiles and missile launchers; small arms and light weapons.

The exact definition of each of these categories is left to each of the state parties. However, the treaty encourages the states to apply the treaty to the broadest range of conventional arms and, in any case, not to cover less than the descriptions used in the United Nations Register of Conventional Arms or, in the case of small arms and light weapons, not to cover less than the description used in relevant United Nations instruments.[3]

The common character of almost all the categories listed, is their ability to engage and destroy targets, whether by direct fire or by indirect fire.[4]

As one commentator noticed, "Somewhat strangely, the treaty does not apply to hand grenades or landmines". Actually, explosive charges, generally, are not included. This is probably not an unintended lacuna, since in the "facilitator's Summary for Scope", describing the discussions on the issue during the July 2012 conference, military explosives were mentioned (p. 5).

It is clear, when comparing the scope of the ATT to the control lists of the Wassenaar Arrangement, that the ATT does not apply to the transfer of military technology or materials for military or dual-use purposes, outside of a tangible platform covered by the treaty.

Moreover, other types of important and tangible military equipment are out of the scope of the treaty, unless integrated in the platforms covered (for example, radar systems, military communication systems, military optical equipment).

Ammunition and parts of the platforms covered are not included in the scope defined in the treaty (article 2), but rather in separate articles (articles 3 and 4). The outcome is that the treaty applies to ammunition and parts only when specifically stated. Thus, some important provisions do not apply to them, such as the provisions on transit, brokering, diversion, record keeping and reporting (articles 9-13) that I will  discuss further.

Looking at the facilitator's summary mentioned above, it is obvious that the narrow scope of the categories of "arms" regulated by the ATT, as just illustrated, was probably a compromise needed in order to reach wide agreement among states participating, and not an accident.

 

What activities are regarded as international trade under the treaty?

Export, import, transit, trans-shipment and brokering are all included in the definition of "transfer" regulated by the treaty.

As inclusive as this definition looks at first sight, some commentators claimed it does not include arms transferred as gifts, loans, leases and aid. Again, looking at the drafting history (again, the Facilitator's Summary mentioned above), shows that these activities were explicitly discussed, hinting that their omission was a deliberate result of a decision to leave them out of the treaty. On the other hand, one must consider article 2(3) of the treaty, which excludes from the treaty's scope "the international movement of conventional arms by, or on behalf of, a State Party for its use provided that the conventional arms remain under that State Party’s ownership". This provision may imply that the treaty will regulate any international movement of arms not falling into these terms, including loans, leases and gifts.

One commentator pointed to the fact that the terms used, such as "export", "import", "brokering", are not defined. The common notion of "export" is associated with the transfer of goods abroad for sale. However, are these cumulative demands? Is it enough that the arms cross a border (outside the scope of article 2(3) just discussed) even without a change of title? This interpretation will allow manipulation to exclude a transaction from the scope of the treaty by changing the title only after the arms reach their destination. Another scenario is a multinational private security company manufacturing arms in a factory it owns in one country and transferring it for the use of its employees in another country. There is no change of title in this case. If one feels the need to include such a scenario in the scope of the treaty, how can we differentiate it from another scenario: a person traveling abroad with his privately owned rifle to participate in a shooting competition or a hunting trip? Here, one may feel that applying the treaty is unnecessary.

These are complicated questions, which the treaty's text avoids by omitting definitions. However, what seems to be "constructive ambiguity" in an effort to reach a wide accepted treaty may prove later to be a source of deep disagreement over interpretation and implementation.

It is important to emphasize that the treaty applies to international arms trade and does not mean to interfere in the domestic regulation of arms trade in each state. To clear any doubts about this, the preamble includes recognition of "the legitimate trade and lawful ownership, and use of certain conventional arms for recreational, cultural, historical, and sporting activities, where such trade, ownership and use are permitted or protected by law". Some say this declaration was specifically designed in order to leave the treaty outside the lively domestic public debate in the US over gun control and the 2nd amendment to the US Constitution. However, according to the New York Times, a large and suspecting opposition, under the gun lobby's flag, is already gathering at the Senate…

Does the treaty apply to arms trade with non-state armed groups?

The treaty is designed to apply to states and addresses its obligations to states, whether exporters, importers or transit states for the international arms trade. It does not explicitly allow or forbid arms transactions with non-state actors (NSA). A state party must assess such transactions under the same criteria as transactions with other states.

Some representatives in the General Assembly debate, indicated the lack of a prohibition on arms trade with NSA as one of the reasons for their state abstention or rejection (Nicaragua, Russia, India and, surprisingly, Syria[5]). Other representatives, lamented the lack of specific recognition in the treaty of "the right of peoples under foreign occupation to self-determination" (UAE, Lebanon). The motive was, probably, to legitimize arms trade with NSA in certain circumstances.[6] Overall, it seems that refraining from explicitly legitimizing or delegitimizing arms trade with NSAs was another compromise made in order to achieve the widest possible agreement.

What does the treaty forbid?

The treaty contains a provision defining circumstances of absolute prohibition on arms transfer (article 6), and a more flexible provision, demanding that a state will conduct an assessment before authorizing the export of arms, taking into account certain parameters (article 7).

The absolute prohibitions include violating arms embargoes and other measures adopted by the UN Security Council under Chapter VII of the Charter.  It is also forbidden to authorize the transfer of arms that violates relevant international obligations under international agreements to which the state is a party.

These obligations do not add significantly to the burden on states, since even without the treaty, UN member states are obligated to accept and carry out the decisions of the Security Council, under article 25 of the UN Charter. The obligation not to violate other international agreements through arms transfers also does not add much to the well-established pacta sunt servanda principle.

The more significant prohibition is contained in article 6(3). This provision stipulates that a state shall not authorize any transfer of arms "if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, 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".

This provision is one of the cornerstones of the treaty and speaks for itself. However, it will be noticed that here, too, like in other provisions of the treaty already discussed, there are no definitions of the terms used, other than grave breaches of the Geneva Conventions, which is clearly defined in the Geneva Conventions themselves.

The prohibitions included in article 6 leave outside many wrongs that can be perpetrated with arms. In order to, partly, close this gap, article 7 demands of an exporting state party, prior to authorization of an export, to assess the potential that these arms would contribute to or undermine peace and security, or could be used to commit or facilitate  a serious violation of :

International humanitarian law (IHL);

International human rights law (IHRL);

An offence of terrorism;

An offence related to transnational organized crime;

Serious acts of gender-based violence or serious acts of violence against women and children.

While offences of terrorism and organized crime are clearly defined by reference to international conventions or protocols to which the exporting State is a Party, no such reference or definition is used for IHL, IHRL or the other forms of violence mentioned.

What is common to all these considerations, excluding IHL violations, is that they may exist outside the context of an "armed conflict". Indeed, history shows that states used (and are using) military weapons to suppress domestic resistance in situations below the threshold of an "armed conflict", or in situations when the state refused to acknowledge the conflict as an "armed conflict", even if objective criteria so demanded. The treaty "throws the net wide" and it seems helpful.

For many countries, and Israel especially, including acts of terrorism is important. However, the provision is "soft" and flexible. Even if the potential for abuse exists, the exporting state may consider measures to mitigate the risk in cooperation with the importing state. Only if, after considering mitigating measures, there is "an overriding risk of any of the negative consequences" the exporting State Party shall not authorize the export.

The prohibitions in article 6 are of the widest scope in the treaty, both in terms of activities covered, which are all the activities defined as "transfer", and in terms of items included, which encompass also ammunition and parts.

The assessment demanded in article 7 is wide as to items, including ammunition and parts as in article 6, but narrower on activities, covering just export.

It seems that the main burden in the treaty is on exporting states. The treaty also casts obligations on importing states, transit states and states with a linkage to brokering in arms. However, these obligations apply just to the arms categories defined in article 2, not to components and ammunition. Moreover, these obligations are limited and more general.

An importing state shall supply information, upon request, to the exporting state to assist in its export assessment. It shall also "take measures that will allow it to regulate, where necessary, imports under its jurisdiction". It may also demand information from the exporting state, when it is the final destination of the arms (article 8).

Transit states have even a vaguer obligation, to "take appropriate measures to regulate, where necessary and feasible, the transit or trans-shipment under its jurisdiction of conventional arms covered under Article 2 (1) through its territory in accordance with relevant international law" (article 9).

"Appropriate", "when necessary", "feasible" – are all terms that dilute the substance of an obligation.

States are also required to take measures to regulate brokering in arms taking place under their jurisdiction. Such measures may include requiring brokers to register or obtain written authorization before engaging in brokering (article 10).

Finally, the treaty addresses the concern of diversion of arms from their declared destination and includes provisions as to international cooperation, report and sharing lessons learned to mitigate this risk.

Who will determine whether an arms transfer violates the treaty?

The treaty does not establish an international mechanism to evaluate whether a certain arms transfer is in conformity with its provisions. Nor is there an international enforcement system for such violations. The treaty leans almost exclusively on state responsibility, state self-regulation and state self-enforcement.

The treaty does have obligations as to record keeping about arms transfers (article 12), and about transparent reports of arms transactions (at article 13, to be elaborated next). These provisions may be considered as measures to encourage compliance and deter form non-compliance. However, they are probably the weakest kind of these measures.

The treaty's reliance on states' discretion and self-enforcement may be criticized as producing a treaty that has no teeth in it, or is merely lip service.

This concern deepens when considering the competitive nature of the arms industry and the economic consequences at stake. A state genuinely interested in setting high standards on arms sale, may be discouraged by the possibility that a less choosy state may allow the same sale by its own industries. In this scenario, the adverse effects of arms sale at the destination will not be avoided, while local employees losing their jobs in the arms industry of the more fussy state will pay an additional toll. In other words, national interests may apply pressure to adopt the minimum standards acceptable.

Transparency: will the treaty put an end to secret arms deals?

The treaty provides that an initial report as to the implementation of the treaty shall be handed by each state within the first year after its entry into force. Afterwards, states shall submit annually a report on authorized or actual exports and imports of arms in the preceding year. The reports will be distributed and made available to state parties.

However, reports "may exclude commercially sensitive or national security information" (article 13). Since there are no definitions or standards for these criteria, secret arms deals could still be held in accordance with the treaty.

Indeed, one of the modest changes between the July 2012 draft and the final draft is the omission of the word "transparent" from the description of the national control system regulating the international transfer of arms in each state (compare article 5(3) of the July 2012 draft to article 5(2) of the final text).

When will the treaty enter into force?

The General Assembly's adoption of the final text negotiated in the March Conference is only the beginning of what can be a long process. The treaty will be open for signature from 3 June 2013. I will enter into force ninety days after the fiftieth state will deposit its ratification.[7]

Even before the treaty enters into force, states signing or ratifying it may declare that they will provisionally apply  articles 6 and 7 (article 23). Furthermore, considering the vast support in the General Assembly, the treaty may be used as a "soft law" standard to evaluate arms deals prior to its entry into force.

How will the treaty affect non-party states?

The previous, July 2012 draft, had a provision stipulating that state parties will apply the prohibitions on export to states not party to the treaty (article 23). This provision was omitted in the final draft, maybe due to the concern that it will be interpreted as excluding arms transfers between state parties from the scope of the treaty.

However, the treaty obligations are not limited explicitly to transactions with other state parties, and it seems that a state party must comply with the treaty in all its arms trade activities, regardless of whether the other party is a state party to the treaty, a non-party state or even a non-state actor.

This means that even a state that will chose not to accede to the treaty may be affected by it in its arms trade. However, it is important to note that the treaty does not establish a more coercive mechanism to pressure states to accede, existing in some international treaties[8]: forbidding arms transfers to non-party states.

If the treaty gains wide and almost universal ratification and compliance, it may eventually become a norm of customary international law, binding even non-party states[9] – time will tell.

How will the treaty affect arms deals signed but not yet executed?

International arms trade has security and political implications, but also economic and commercial implications. Sometimes, the parties to the transaction or part of them are not states but commercial corporations, public or private. This raises complex questions as to the rights of these parties, when a state interferes or terminates an existing commercial contract due to political and security considerations.

For example, Russia cancelled the deal to export S-300 air defense missile systems to Iran. The Russians declared that the cause of the cancellation was Security Council Resolution 1929 from June 2010 (article 8), which banned the export of certain kinds of arms systems to Iran. The Iranians submitted a claim for breach of contract, in the sum of four billion US dollars, against Russia and the Russian corporation involved (government owned), to the international court of arbitration (See a post supporting the Russian position here and a post arguing the Russians have no support in the SC Resolution here[10]).

The previous draft text of the treaty, concluding the July 2012 conference, included a provision stating: "The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments" (Article 5(2)). Justifiably, this provision was fiercely criticized for making the suggested treaty a meaningless instrument, since any international agreement to sell arms may override it.

The final text added to this provision the words "where those obligations are consistent with this Treaty" (article 26(1)), thus, taking the sting out of the original text.

However, article 26(2) preserved another provision from the July 2012 text, endorsed by India and almost as problematic, stipulating that the treaty "shall not be cited as grounds for voiding defense cooperation agreements concluded between States Parties to this Treaty". If this provision were limited to defense cooperation agreements existing at the time the treaty enters into force, it would be easier to justify.

Perhaps there is a way to read this provision in harmony with article 26(1): a defense cooperation agreement cannot justify an arms transfer prohibited under the treaty. However, the mere fact that a certain arms deal is not possible under the treaty will not be grounds to withdraw from other aspects of a defense cooperation agreement and to cancel it entirely.

How would the treaty, if ratified, affect the Israeli arms trade arrangement?

As mentioned, Israel supported the UNGA resolution adopting the treaty. If Israel ratifies the treaty, what changes will be needed in Israeli domestic law? At a first glance, no dramatic changes.

The Israeli legislation on supervision of security export was comprehensively updated in 2007. Security equipment, security knowledge and security services are defined very broadly (partly with reference to the Wassenaar Arrangement's control lists). Every security export demands a license, including marketing activities prior to a deal, transit deals and brokering .

One of the explicit purposes of the legislation is to comply with Israel's international obligations. The national authority may refuse to give a license, set conditions to a license or withdraw it, due to considerations relating to the end-user or the end-use (articles 8(7) and 9(a) of the statute). The combination of these provisions seems to set a sufficient framework for the implementation of the treaty's provisions, once the treaty becomes an "international obligation" of the state of Israel. However, an explicit amendment to the statute may be useful, both to enhance legal certainty and to increase public awareness and education on this issue.

It is interesting to mention that the existing statue has already a specific provision, forbidding brokering by an Israeli in an arms deal violating UN Security Council's embargo (article 22).

What does the future hold for the treaty?

I started this review of the treaty with the General Assembly's resolution to endorse the treaty "to a burst of sustained applause", as the UN communique described it.

Indeed, many commentators share this enthusiasm. "A major achievement" was the title on one comment, contending, "the treaty is a strong and balanced text that clearly enjoys very widespread support, and if adhered to and implemented in good faith it will significantly reduce the humanitarian impact from the irresponsible transfer of weapons". An NGO activist said to the Guardian that the treaty is a milestone that would regulate "the illegal flow of arms to warlords, tyrants and despots around the world, a treaty that could save the lives of millions and help prevent conflicts like those in Mali or Sri Lanka ever happening again".

On the other hand, there are the skeptics. In a very detailed and critical analysis of the July 2012 text, mostly relevant to the final text, too, the commentator writes:  "The loopholes are not in the treaty. The treaty is the loophole". The argument is that the treaty actually legitimizes the arms trade while not setting any significant obstacles to irresponsible arms sales, since "the transfer criteria and the rest of the treaty are window-dressing that will affect only the nations that take them seriously". Indeed, if so many nations desire stricter limitations on arms transfers with a potential adverse effect on people, why didn’t they act until now, on their national level? Why is there a need for an international treaty that, eventually, leaves almost everything to national discretion?

As the number of states that could live with the treaty's text moved up, inevitably, the standards set by the treaty went down. Looking at the text reviewed from a bird's eye view, I think, indeed, it is a modest start. However, maybe the treaty could be the beginning of a process and not the end of it.

Reservation

This is a preliminary review of the treaty, based solely on publicly available materials. I will be grateful for comments and corrections. Naturally, this review is designed for general orientation and education and should not be relied upon as legal advice.   

 


[1] On the interesting question of the meaning of "consensus" in international decision making, see this post in EJIL Talk! By Dapo Akande and following comments.

[2] Israel, while not formally participating in the Wassenaar Arrangement, has adopted in its security export legislation the principles and control lists of the Arrangement and engages in a dialog with Wassenaar members. See: here and here.

[4] The only exception is armored combat vehicles, which may be just a transport vehicle for infantrymen.

[5] Assad's regime's current interest in preventing arms support for the Syrian armed opposition is understandable. However, considering this regime's years-old support of NSAs such as the Hezbollah in Lebanon, accusing other states of "political hypocrisy" was surprising.

[6] Indeed, the right to self-determination was not explicitly mentioned in the text of the treaty. However, the preamble does mention the United Nations Disarmament Commission Guidelines for international arms transfers in the context of General Assembly resolution 46/36H of 6 December 1991.  This instrument, among its "principles" is "taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognize the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination".(article 14). Available at: http://archives.sipri.org/contents/expcon/acn10.html (last visited 22.4.2013).

[7] Interesting to note that in the July 2012 draft (article 16) the requirement was for sixty-five states, not fifty.

[8] For example, see the Montreal Protocol on Substances that Deplete the Ozone Layer, article 4, which bans, under certain circumstances, the import from non-state parties or the export to non-state parties of controlled substances, available at:  http://ozone.unep.org/Publications/MP_Handbook/Section_1.1_The_Montreal_Protocol/Article_4.shtml (last visited on 22.4.2013). 197 states ratified this protocol, making it the most widely ratified treaty in UN history (according to a UNEP press release, available at:  http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=2666&ArticleID=9010&l=en (last visited on 22.4.2013).

[9] Unless they are consistent objectors.

[10] The last post is by Prof. Dan Joyner, whom I lately had the privilege of hearing discuss other Iran-related legal issues at the Hebrew university of Jerusalem. Unfortunately, from the Israeli interest viewpoint, I think Prof. Joyner's arguments on this matter are convincing.