Per la Pau / Peace in Progress

Sarah Parker

The Arms Trade Treaty (ATT), an international instrument designed to regulate the trade in conventional arms, including small arms and light weapons (SALW) makes a significant contribution to the existing arsenal of international and regional efforts over the past decade or so to address the problems associated with irresponsible arms transfers and small arms proliferation.[1] Central among those is the United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (PoA)[2], adopted by UN member states in 2001. The aim of this article is to explore the relationship between the ATT and the PoA, including synergies and inconsistencies, and the practical and political impact of their co-existence.

The PoA is a politically (non-legally) binding document that establishes a normative framework for activities to combat the illicit trade in SALW. It covers a broad range of measures that states have agreed to take including: controlling the manufacture of SALW, ensuring they are marked and appropriate records are kept, regulating the international transfer (export, import, transit and brokering) of such arms, and managing state stockpiles. However, the PoA only covers SALW, not other types of conventional arms. In contrast, the ATT covers a broader range of conventional arms[3], but only deals with one main control measure: international transfers (export, import, transit or trans-shipment and brokering).[4] So, in terms of their overlap, both instruments include provisions on the international transfer of SALW. 

Not surprisingly, given its exclusive focus on international transfers, many of the ATT provisions are more detailed than their equivalent in the PoA. For example, the PoA includes a commitment on the part of states to 'assess applications for export authorizations', but, aside from a general reference to 'relevant international law' and a specific reference to the risk of the weapons being diverted to the illegal trade, does not specify the sorts of risks states should look out for when deciding whether or not to export SALW.[5] The ATT, on the other hand, includes a list of the potential risks states should and must heed when making an export decision (including whether the arms could be used to commit or facilitate a serious violation of international humanitarian law or human rights law), as well as a detailed process to be followed when making the risk assessment.[6] So the ATT builds on PoA norms governing international transfer controls because its provisions on export licensing are relatively strong.

But there are also ATT provisions that are less comprehensive than their PoA equivalent. For example, while under the PoA states have undertaken to put in place 'adequate laws, regulations, and administrative procedures' over transit,[7] state parties to the ATT have a qualified obligation to 'take appropriate measures to regulate, where necessary and feasible' transit or trans-shipment.[8]  With respect to brokering, under the PoA, states have undertaken to develop adequate national legislation or administrative procedures regulating brokers, and this should include registration of brokers, licensing or authorization of brokering transactions as well as appropriate penalties for illicit brokering.[9] Under the ATT, states parties shall take 'measures' to regulate brokering pursuant to their national laws, but this basic obligation is undermined by qualifying language whereby such measures may include requiring brokers to register or obtain written authorization.[10]

Worse still, there are provisions in the ATT that take emerging norms backwards. For example, while under the PoA states must keep 'comprehensive and accurate' records on SALW transfers (including export, import and transit) 'for as long as possible' and the International Tracing Instrument[11] stipulates such records should be kept indefinitely or for at least 20 years, under the ATT states parties shall keep records of export authorizations or actual exports and are encouraged to keep records of imports and transits 'for a minimum of ten years'.[12]

In summary, the ATT helps create benchmarks and elaborates on some of the PoA commitments that lack specificity, including risk assessments associated with exports. It also reinforces certain national-level commitments and turns some of the existing commitments in the PoA into legally binding obligations. Whether the fact that they are now legally binding commitments (for states parties) improves states implementation of these commitments in practice remains to be seen. With respect to ATT provisions that are weaker than their PoA equivalents, the discrepancy could lead to an erosion of existing commitments, or of their relevance, and a lowering of emerging benchmarks for small arms control.

The PoA process also provides some (negative) lessons learned about implementation, including a lack of specificity and benchmarks in the PoA text that make implementation difficult to assess, exacerbated by the absence of a formal follow-up mechanism. Additionally, it took many years and several attempts for an appropriate reporting template to be developed[13], and detailed guidance on what implementation of each of the PoA commitments requires has also been slow in coming. Hopefully such delays can be avoided in the ATT process.

The ATT has attracted international attention that surpasses that experienced by the PoA, and will almost certainly continue to do so. This may lead to competition for funding and resources for implementation of the two instruments. There is also a danger that states will prioritize implementation of the ATT over the PoA, either because funding for ATT-related projects is more readily available or because they perceive the ATT as replacing the PoA or somehow rendering it redundant. The latter perception would be to misunderstand the relationship between the two instruments.

In many instances the ATT complements and bolsters the PoA provisions relating to international transfers, but it cannot and should not be viewed as replacing the PoA in its entirety. International transfer controls are but one aspect of the PoA amid a broad range of arms control measures. And for many UN member states, including many that fought to ensure SALW are included in the ATT, the SALW problems they face have less to do with inadequate international transfer controls and more to do with managing and controlling SALW already within their territories. To see them spend scarce resources on establishing elaborate export control systems in the name of ATT compliance, while national priorities may lie elsewhere—addressing leakage from state stockpiles or improving marking and record-keeping practices—would be unfortunate, to say the least.

The adoption of the ATT represents a landmark in multilateral disarmament that has the potential to contribute to strengthening international transfer controls governing conventional arms, including SALW. However, even though the ATT includes SALW in its scope, the PoA remains the most comprehensive, universal framework for small arms control to which all UN member states are and remain committed. Both instruments are needed, but neither will fulfill its stated objectives if not implemented.