IN DEPTH
Is the Arms Trade Treaty a failure?
Barnaby Pace
It is a strange world when anti-arms trade campaigners are against more regulation of the arms trade. However, there are major concerns that a weak treaty will lead to a justification of the status quo and entrenchment of the interests of arms exporters.
A treaty has always been seen as one of the few ways of quickly limiting the arms trade and eliminating gaping holes in arms export control worldwide, with a standardised system being the only kind that could eliminate loopholes and prevent playing one country off against another, moving arms transfers through less regulated regions, lobbying governments or creating a race to the bottom on export laws.
However, a weak treaty does none of these things well. Instead, legalising and legitimating the awful status quo, it will solve nothing and could set real action back by decades.
The most important part of the treaty concerns the risks it considers relevant for prohibiting arms sales and how these risks have to be assessed to make a decision on whether or not to allow the export of arms. The ATT's criteria are whether such exports would contribute to or undermine peace and security; or could be used to commit or facilitate a serious violation of international humanitarian law or human rights law, or an act of terrorism or transnational organised crime. The risk of contributing to or facilitating serious acts of gender-based violence or violence against children is also included.
The standard against which these issues have to be judged to determine whether or not the export should be authorized is if there is an "overriding risk" of any of the negative consequences mentioned.
Each country is left to make its own subjective judgement of where an "overriding risk" exists. Also, it is left to the imagination what other factors the risk is overriding. There is no prohibition on countries considering their political, military or economic factors that might be in favour of allowing a highly risky arms export. Even where there are substantial risks of serious violations space is allowed for countries to argue that the risk is sufficiently mitigated, thereby allowing the exports anyway.
Whilst countries are invited to cooperate in their assessment there is no mechanism to enforce any minimum standard and each country will almost certainly continue their current behaviour, justifying it in exactly the same way they used to, except now adding that it is compliant with the ATT.
The criteria considered are nearly stripped to the bone, only including humanitarian law, human rights, peace and security, and gender-based violence. No mention is made of internal repression, corruption or socio-economic development, to mention a few. The arms trade kills huge numbers through these routes, yet they are not even mentioned.
Key failings in the treaty also include the creation of an exemption for defence cooperation agreements, likely allowing any arms deal to avoid the ATT if it is undertaken between states. Important record keeping and transparency provisions are undermined by the lack of a clear common standard, with states only being encouraged to keep records, not instructed that they must do so in a useful format. Additionally, there are no transparency provisions in place to force states to reveal their activities and decisions to their own citizens. A crucial loophole also exempts ammunition from what record keeping there will be.
A real example of why the treaty will not work is clearly provided by current situations. One of the major rallying calls used in campaigning for the ATT is that Russian arms exports to Syria would be prevented. However, Russia (if they ratify the treaty; they stood aside from the vote) would authorize the exports on the same grounds they do now. Similarly, an effective ATT should prohibit UK arms exports to countries like Saudi Arabia, where an absolute authoritarian government continues to repress its own population and has likely used UK equipment for human rights violations and war crimes in Bahrain and Yemen in recent years. However, the UK will still argue that there is not a clear enough risk to stop exports, that economic and political considerations are more important and that in any case major arms deals to the country take place in state to state deals that are practically exempt under the ATT. The real attitude of the UK government was shown as while the ATT was being passed in New York, UK Ministers were in Libya – aboard a warship – promoting arms sales in the troubled country.
The treaty has sadly been doomed to fail. There is not yet a groundswell of political opinion opposed to arms exports in the major exporting countries, which have the most political clout. The consensus-based process demanded by the United States meant that the treaty was also likely to be set at the lowest possible standard and that the major arms exporters were not about to allow the implementation of standards higher than those they already have, while some exporters, such as Russia, may refuse to sign or ratify the ATT.
The adoption of the treaty was met with a great deal of self-congratulation, but the support of organisations like Amnesty International and Oxfam for a treaty that will rubber stamp the status quo of the appalling current system will likely disappoint or delude the activists that support the treaty. Some organisations, such as Campaign Against Arms Trade in the UK, have declined to support the treaty. Their reputation may be maintained, but unfortunately activists and politicians are still more likely to ignore their arguments on the incorrect grounds that the ATT has solved the serious problems of the arms trade.
In the eyes of those who see the arms trade as an obstacle to peace the treaty was fundamentally flawed from the start. The pre-amble to the treaty recognises the "legitimate political, security, economic and commercial interests … in the international trade in conventional arms." The UN's predecessor, the League of Nations' Covenant was closer to the truth nearly a hundred years ago when it said "the manufacture by private enterprise of munitions and implements of war is open to grave objections.