Below is a guest post by Naomi Egel, research associate in the International Institutions and Global Governance program.
Though armed conflict endures, 2014 closes with a bit of good news: the Arms Trade Treaty (ATT) entered into force on December 24.
Much of today’s global violent conflict is fueled by illicit weapons, which are easily diverted to conflict zones thanks to a vacuum of oversight. Shockingly, the international banana trade is more strictly regulated than the international arms trade. The ATT is an enormous step toward limiting the suffering caused by these illegal weapons transfers.
Ratified by sixty-one countries, including five of the top ten arms exporters, this treaty regulates international arms sales from one state to another, in order to prevent small arms and light weapons from being used “irresponsibly” to perpetrate human rights abuses. The ATT merely regulates the legal arms trade: it recognizes that there are legitimate uses for guns and does not seek to ban them. Though the ATT has its shortcomings, it is an important contribution to a growing body of international humanitarian law that limits how humans can kill and maim.
The first major call for an ATT came from a group of Nobel laureates, led by Oscar Arias in 1995, which advocated an International Code of Conduct on Arms Transfers. The laureates, joined by many civil society organizations under the banner of the Control Arms campaign, drew explicit causal links between the irresponsible arms trade and human rights violations, demonstrating how the legal arms trade between countries often fueled violence and hindered development. In particular, they emphasized how human insecurity caused by irresponsible small arms transfers hindered efforts to achieve the Millennium Development Goals (MDGs), tying the issue to states’ existing obligations to alleviate poverty and meet basic needs.
Article Six of the ATT explicitly prohibits arms transfers in certain situations—including if the exporter knows they would be used for genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians, or other war crimes. Where arms transfers are permitted, states must undertake a comprehensive risk assessment and examine the probability that the arms might be diverted. The ATT is also the first treaty to ever include a specific provision on gender-based violence: when deciding to authorize a transfer, a state is required to consider the risk that the arms would be used to commit gender-based violence such as mass rape. By requiring states to track arms exports, it creates a dual responsibility for both arms exporters and importers to prevent diversion or illicit trafficking of arms.
The ATT has several shortcomings, however. It does not specifically outlaw any arms transfers or sales. States are only required to conduct an assessment and conclude that the transfer would be responsible. The ATT does not establish any sort of arbitration body to resolve disputes over such self-assessments.
Furthermore, it regulates ammunition, parts, and components under export licensing obligations but not under most of the treaty’s other provisions, including those relating to imports, transit and trans-shipment, brokering, and diversion. The treaty also does not cover gifts and loans; only direct arms sales from one state to another. In addition, some argue that since the ATT only covers existing weapons, it is ill-equipped to address new types of weapons or future weapons that may fall outside the stipulated categories. Ultimately, the ATT’s ability to safeguard human life depends on its implementation and ability to adapt.
The United States has signed, but not ratified the treaty (to sign a treaty is to declare support for it, but to ratify a treaty is to implement it as domestic law). The country is unlikely to ratify the ATT in the near future, particularly under the new Congress. The National Rifle Association (NRA) and other gun advocates have actively opposed the treaty since the start of negotiations. Painting the UN as a “global nanny,” they claim that the ATT would regulate domestic gun sales and would require a national registry of gun owners. Although the ATT regulates only the international arms trade between countries (not domestic transactions between people) and is silent on individual arms ownership, these arguments have convinced many members of Congress to oppose the ATT.
Much of the rhetoric in the U.S. debate over the ATT concerns not the substance of the treaty text, but the symbolism of gun ownership, interpretations of Second Amendment rights, and U.S. sovereignty. Failure to ratify the treaty undermines U.S. credibility in advancing human rights globally. Given that the United States already has in place strict requirements for international arms sales that exceed the standard set by the treaty, perhaps one day the Senate can push past these exaggerated concerns and ratify the treaty.
In the meantime, the United States could still further the goals of the treaty by using its diplomatic leverage to pressure other arms exporters to stop funneling arms to states and nonstate groups that commit human rights abuses.
Even without ratification by the United States—the world’s largest arms exporter—the ATT can effectively make the international small arms trade more responsible. It can achieve this even without the participation of Russia and China, two of the other top five arms exporters.
Much of the ATT’s value stems from its normative role in establishing categories of “responsible” and “irresponsible” arms transfers. In an unprecedented step, the ATT extends culpability for human rights abuses to states that knowingly facilitate human rights abuses by providing the weapons used for such atrocities. The ATT also builds on treaties such as the ban on anti-personnel mines that have emphasized humanitarian effects to limit the use of certain weapons. Though the United States never ratified the Mine Ban Treaty, it has brought itself into compliance with the treaty—except for in the Korean Peninsula—and has made significant contributions to clearing mines globally. Thus, it can mimic this “implementation without ratification” strategy for the ATT, and cite this commitment when pressuring others to follow suit.
For their part, even if Russia and China do not ratify or otherwise comply with the treaty, they may find that some of their customers, that themselves have ratified the ATT, prefer to not buy arms—even if for legitimate purposes—from countries that facilitate human rights abuses through irresponsible arms sales. Finally, regardless of the participation of top arms exporters, if a high number of states ratify the treaty, criminal arms traffickers will find fewer countries to use as bases or havens from which to traffic arms illegally.
Because states assess their own transfers, however, the treaty is only as strong as states make it. As the largest arms exporters that have ratified the treaty, France, Germany, and the United Kingdom can send a strong signal by reporting comprehensive data on their arms transfers. This will encourage transparency in reporting. Additionally, parties to the Arms Trade Treaty must ensure that its secretariat, not yet in place, obtains the robust mandate and sufficient financial resources it needs to assist states in implementing the treaty.
While the ATT is not a panacea to prevent human rights abuses involving small arms violence, it is a starting point. While its potential should not be overemphasized, it should be recognized for what it is: a step forward for international human rights.