The Arms Trade Treaty: No Treaty, Weak Treaty, ‘Plan B’?

25 May

As the Arms Trade Treaty (ATT) preparations are drawing to a close and diplomats and civil society alike anxiously await the July Diplomatic Conference, much of the attention has turned to the possible configurations of a (hopefully) forthcoming consensus treaty. Some would argue that it is best to focus on making the negotiations a success rather than prematurely anticipating their failure. As such, the levels of pessimism and optimism vary according to whom one is talking, whether a member state delegation or civil society advocate.

One could continue to debate the ‘nuts and bolts’ of treaty language from scope and final provisions to the strength of the humanitarian references included. Nevertheless, I would argue that it is absolutely necessary at this point to, at the very least, objectively evaluate and consider the possible scenarios of the 4-week Diplomatic Conference and the corresponding consequences of each circumstance irrespective of one’s position on the desired outcome. Such an evaluation would be useful insofar as it would essentially reveal the net effect of each outcome, whether positive or negative, on what I see as the most desirable outcome of the ATT process—a robust instrument of international standards to regulate the global business of the transfer of arms that is fully implementable to include a comprehensive scope, primary attention on diversion, provisions and structure to facilitate international cooperation and assistance that will ultimately stop transfers of arms and ammunition that fuel conflict, poverty, and serious violations of human rights and international humanitarian law.

Questions on the minds of many who have dedicated themselves to this process for over a decade are clear— is a weak treaty better than no treaty at all? Would a weak treaty do more harm than the harm caused by opting out of the process altogether? Where are the ‘redlines’ that would warrant such an abandonment come July? Are there alternatives for negotiating an ATT within the UN system, or perhaps outside it? In order to address these inquiries it is important to contextualize the ATT debate. To my mind, the ATT process will encompass much more than the month of July. It is essential to assume a long-term perspective, in particular a process through which states commit to a review process that establishes regular meetings of states parties to assess and adjust the ATT to better reflect evolving security circumstances. Moreover, as with all multilateral negotiations, the ATT has not and will not be formulated in a vacuum. In 2012, member states are faced with parallel disarmament and arms control challenges—high stakes for a Conference on the establishment of a weapons of mass destruction-free zone in the Middle East, a continued stalemate in the Geneva-based Conference on Disarmament now stretching over 15 years, and a 13th straight year without consensus recommendations in the Disarmament Commission. Furthermore, a failed negotiation on an ATT would, in turn, also cast a long shadow over the Review Conference of the UNPoA, which is scheduled to take place in August after the ATT negotiations have concluded.

What, then, are the possible scenarios for the ATT Conference? It seems that two of the principle scenarios—adoption of a weak treaty or adoption of no treaty at all—will have significant negative consequences. The only outcome that would not have negative effects would be adoption, by consensus, of an ideal treaty characterized by high levels of state accountability (especially on weapons diversion), oversight capacity for an Implementation Support Unit (ISU), and strong, binding humanitarian language. However, as this process is subject to a consensus rule, a provision that was introduced by the US as a precondition for taking part in the negotiations, this scenario is highly unlikely. Some member states, including the US, have already made clear that a high level of oversight, or any oversight, will not be acceptable and that it is entirely a national prerogative to determine how to manage national export controls in response to any international standards adopted in the ATT. Other member states have continuously asserted that the ATT is a trade treaty seeking merely to regulate the legal business of arms transfers and will not seek to limit the right of member states to sell or purchase arms by overburdening them with treaty-specific reporting obligations.

Therefore, I highlight two principle scenarios and what effect each would have on the long-term process. There are strong arguments that an ATT deemed ‘weak’ is better than no treaty at all. Some would argue that a strong review process with the possibility for improving on the first iteration of the ATT would be a generally positive outcome. Similar to the evolutionary process of the International Criminal Court (ICC), the argument would be that the ATT will most likely require sequential refinement under the auspices of a regular cycle of review conferences in order to achieve even close to its full potential, but that such refinements are possible and preferable to abandoning to the process altogether.

It could also likewise be argued that prospects for success of an ATT next July, as opposed to this July, is not any higher (especially given the consensus provision); thus any postponement would be futile, especially given the weight of the consensus provision. In light of other related UN processes such as the UNPoA, a completely failed ATT Conference would be severely detrimental to the other, in many cases already broken, parts of the multilateral disarmament machinery dealing a major legitimacy blow to the system. Even if the ATT is not universally considered a disarmament treaty per se it is certainly being treated as such by civil society and some member states. A failed process would indubitably be a serious blow to a system desperately in need of tangible victories.

In contrast, there are those that argue, and rightfully so, that a weak treaty would have far greater negative effects in the aggregate. A weak treaty— a simple list of principles which member states should bear mind in when transferring weapons without any accountability or implementation mechanism—could be used as cover for future transfers of questionable character. Signatories could argue that they are acting in accordance with their international law obligations as parties to the ATT, have evaluated a given transfer according to this list of principles (‘bearing them in mind’), and have nonetheless decided to continue the dubious transfer. Moreover, a weak ATT could potentially be used as the basis for states seeking to curtail UN efforts to advocate for better controls of illicit small arms or for stronger application of international humanitarian and human rights law related to the production or use of armaments. Either of these outcomes would fuel considerable skepticism regarding the viability of the UN in regulating the global arms trade, not to mention anger at the UN for creating ‘cover’ for bad behavior rather than eliminating said behavior.

Universality of the ATT process will have a direct effect on its strength—the more member states that subscribe to it, the weaker it will inevitably become. This debate begs the question, then, when is it better to walk away from the process than to proceed with a weak treaty? What are the points that are ‘non-negotiable’? For each member state, the answer to this question will vary. The CARICOM states have placed tremendous emphasis on the inclusion of SALWs in the scope, while the UK has recently underscored the arms trade as the ‘greatest threat to development, beyond disease and disaster’. Brazil, on the other hand, has continuously asserted its marked opposition to references to corruption, development, and stability in the criteria. Needless to say, the ‘redlines’ are not uniform and vary according to national interests, but it is absolutely essential that delegations know what those lines are before formal negotiations begin in July. Delegations must evaluate when the best course of action would be to ‘walk away’ from the process and seek alternatives elsewhere.

If delegations choose to ‘walk away’ from the process in July, alternative forums for negotiating an ATT are available, but also with their own set of limitations. There is the option to take the issue to the General Assembly in the fall and seek a new resolution and form of recourse to get negotiations back on track. Some like-minded states have discussed, unofficially, the possibility of opting out of the universal process in order to pursue a more comprehensive ATT, but one that will inevitably have fewer signatories. Foregoing a universal forum for ATT negotiation could call into question the future relevance of universal negotiations in the field of disarmament and arms control, which is already in serious jeopardy given the CD paralysis. Furthermore, such an approach would meet the same difficulties as have been encountered with regards to international efforts to ban cluster munitions and landmines. While such courses of action of like-minded states contribute to norm-setting, they likely fail to provide a universal framework for addressing the issue at hand. The value added of an ATT that is not universal, most especially one that does not legally bind the primary arms manufacturers and exporters, is not altogether lost, but certainly substantially diminished. The states subject to such treaties negotiated outside the universal process are usually those already committed to the regulations.

What, then, is the best scenario? The best scenario is, as previously mentioned, a robust and comprehensive instrument with full implementation capacity. However, this is not the only question that should be asked. The focus now should not be just on what is the best scenario, but also on the best path towards the ideal scenario, even after July negotiations conclude, by objectively evaluating the consequences of each of the most likely negotiating outcomes.

 

–Katherine Prizeman

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