Arms Trade Treaty – Could it Provide More Ammunition for Government Lawyers?

          According to the Obama administration “[c]onventional arms transfers are a crucial national security concern for the United States.”[1] The international regulation of conventional weaponry, including small arms, has been linked to US efforts to combat global terrorism[2] and alleviate human suffering in humanitarian crises.[3]   In October 2009, Secretary of State Hillary Clinton expressed the US government’s support for “a strong and robust treaty”[4], however practice has not yet married with promise.  Early this year, the US missed a prime opportunity to take action to stem the proliferation of small arms and other conventional weapons by refusing to join a widely endorse draft of the international Arms Trade Treaty (ATT).  Fortunately, a second chance is now on the horizon.

          Within hours of winning re-election, the Obama administration reaffirmed support for the ATT, sending opponents, worried that a new agreement would enhance the ability of international bodies such as the United Nations to exert control over the sovereign authority of the United States or circumvent constitutionally granted rights, into a tizzy.[5]  Not unexpectedly, the President, who has made foreign policy a hallmark of his terms in office as he strives to rebuild American prestige abroad, answered the call of the international community for renewed American leadership on this issue.  The administration’s commitment to concluding a workable ATT should be commended as a positive step towards strengthening the rule of law internationally by enhancing the regulation of conventional weapons transfers. 

          Currently, no comprehensive global weapons transfer regulations exists, leaving nations free to supply weapons, including; tanks, armoured vehicles, helicopters and aircraft, warships, missiles, and small and light weapons[6], to unsavory governments and armed groups throughout the world with impunity.  Conventional weapons in particular present difficult challenges for the IHL paradigm as they are not in and of themselves illegal.  Undoubtedly, small arms and other conventional weapons have a number of lawful uses including national security and domestic law enforcement, as well as individual self-defense.   The legitimate trade of conventional weapons also has significant economic and commercial benefits.  Notwithstanding these facts, small arms contribute to widespread violations of international humanitarian and human rights laws, placing vulnerable, and otherwise protected populations, at risk of harm. [7]  Small arms are responsible for the deaths of hundreds of thousands of innocent civilians each year.[8]  Small arms trafficking fuels and ultimately prolongs conflict, provides non-state armed groups and cartels with a means to defend their illicit behaviors, restricts the delivery of humanitarian assistance, and inhibits the establishment of sustainable peace long after conflict has ended.   Despite the ouster of Muammar Gaddafi, the security situation in Libya remains chaotic in large part due to the inability of the Libyan government to disarm former rebels, many who now use weapons acquired during the overthrow of the regime to entrench themselves in villages and towns.  The International Committee of the Red Cross has called the establishment of an international arms transfer regulation a “humanitarian imperative.”[9]

          Historically, the US has been at the forefront of strengthening international humanitarian law (IHL).  The Lieber Code, adopted by President Abraham Lincoln during the Civil War, was the first modern codification of IHL principles.  After the Second World War, the United States championed the development of international criminal law, working with France, the UK and the USSR to create the International Military Tribunal at Nuremberg.   In recent times however, the US has been loath to ratify many important international agreements.  During the Clinton administration, Congress repeatedly filibustered attempts to ratify the Comprehensive Nuclear Test Ban Treaty.   During the George W. Bush administration, the United States reneged on the Anti-Ballistic Missile Treaty and withdrew its signature from the Rome Statute despite being instrumental in Statute’s creation.  The United States has failed to ratify Additional Protocols I & II of the Geneva Conventions, the Ottawa Convention prohibiting the use of anti-personnel landmines, and is the only country except Somalia to not ratify the Convention on the Rights of the Child.  Before the pen had even hit the paper, a number of vocal opponents in the Senate threatened to block the Arms Trade Treaty for fear that it would infringe on citizen’s Second Amendment rights to bear arms – something that the ATT simply does not do.  Propagating misinformation, these members of the Senate and certain pro-gun organizations will make the ratification of the ATT difficult, if not impossible in the future.

          On April 16, 2012, just months before diplomats would meet in New York to draft the agreement, Assistant Secretary, Bureau of International Security and Nonproliferation, Thomas Countryman reiterated the Obama administration’s support of the ATT, announcing that the United States would endorse the treaty if it was consistent with four conditions: 1) that the treaty be merely a regulation, not a ban on the international transfer of arms; 2) that nations themselves be left to regulate the implementation of the agreement; 3)that the treaty exclude ammunition as a category of prohibited weapons; and 4) that it not interfere with citizen’s rights to bear arms.[10]

           A reading of the final draft document produced by the July negotiations reveals that the US has greatly influenced the content of the treaty, consistent with the conditions outlined by Assistant Secretary Countryman.   The treaty is not a complete prohibition on the export of weapons, nor does it prohibit the transfer of ammunition.  Instead, the treaty prohibits transfers only when such deliveries would violate UN arms restrictions, such as arms embargo and other international agreements against illicit trafficking, or when the transfer of conventional weapons would be “for the purpose of facilitating the commission of genocide, crimes against humanity, war crimes constituting grave breaches of the Geneva Conventions of 1949…”.[11]  Moreover, the treaty places the burden of enforcing its provisions on individual nations, requiring only that State Parties “adopt appropriate national measures and policies as may be necessary” to implement the treaty.[12] In the upcoming negotiations scheduled for March 2013, it is unlikely that the United States will be a major roadblock to the successful adoption of the ATT, although it is foreseeable that the Senate will torpedo ratification.  If this is true, the focus will turn to the other major arms producing nations like the United Kingdom, France, Russia, China, Italy, and Germany[13], most of which have expressed support for the treaty.

           Heralded as a potential game changer, without more substantive enforcement provisions covering a full scope of both weapons and ammunitions, the ATT may be no be than symbolic.  Left to self-regulate, nations will likely maintain status quo arms relationships with even greater legal justification.  Complying with the lenient regulations of the draft treaty may provide legal cover for governments, allowing officials to wipe their hands clean of any criminal liability so long as they follow a form process of conducting national assessments and taking “feasible measures” to avoid unlawful transfers mandated by the treaty.   Although weapons trades may be prohibited in the worst situations, they will be made expressly legal in all other cases.  Diversion and direct transfer of weapons to non-state armed groups or unfriendly nations will surely continue.  The ATT is unquestionably an encouraging development in the international humanitarian and human rights realms, but may ultimately fall well short of minimizing the “humanitarian consequences of the illicit trade in and unregulated trade of conventional arms” that the treaty is designed to address. 

  


 

[1] Secretary of State Hillary Clinton, U.S. Support for the Arms Trade Treaty, October 14, 2009 available at http://geneva.usmission.gov/2009/10/14/armstradetreaty/.

[2] Asst. Secretary, Bureau of International Security and Nonproliferation Thomas Countryman, Positions for the United States in the Upcoming Arms Trade Treaty Conference, April 16, 2012 available at  http://www.state.gov/t/isn/rls/rm/188002.htmSee also Under Secretary from Arms Control and International security Ellen Tauscher, Arms Trade Treaty, February 18, 2012 available at http://www.state.gov/t/us/136849.htm (linking the creation of tje ATT to preventing terrorism).  

[3] See Countryman, supra note 2.

[4] Clinton, supra note 1.

[5] Louis Charbonneau, After Obama Win, U.S. Backs New U.N. Arms Treaty Talks, Reuters, Nov. 7, 2012 available at http://www.reuters.com/article/2012/11/07/us-arms-treaty-un-idUSBRE8A627J20121107.

[6] See The Draft of the Arms Trade Treaty, Art. 2(1), UNGA A/CONF.217/CRP.1 July 216, 2012 available at http://www.scribd.com/doc/101162879/20120726-Draft-Arms-Trade-Treaty (Listing the categories of weapons subject to ATT regulations).

[7] International Committee of the Red Cross, Protecting Civlians and Humanitarian Action Through an Effective Arms Trade Treaty, 1, July 2011 available at  http://www.icrc.org/eng/assets/files/publications/icrc-002-4069.pdf.

[8] United Nations Sixty-second General Assembly First Committee, Irresponsible Weapons Transfers, Soaring Death Toll from Small Arms, Light Weapons Underscores ‘Pressing Need’ For Arms Trade Treaty, Disarmament Committee Told,  UNGA GA/DIS/3350 October 23, 2007 available at http://www.un.org/News/Press/docs/2007/gadis3350.doc.htm/.

[9] International Committee of the Red Cross, Arms Trade Treaty a Humanitarian Imperative, August 8, 2012 available at http://www.icrc.org/eng/resources/documents/film/2012/arms-trade-treaty-peter-herby-film-2012-07-31.htm.  

[10] Countryman, supra note 2.

[11] Draft of the Arms Trade Treaty, supra note 6, Art. 3.  

[12] Id.at Art. 11.  

[13] Richard F. Grimmett, Conventional Arms Transfers to Developing Nations, 2002-2009, Congressional Research Service, 32-33, September 10, 2010 available at http://www.fas.org/sgp/crs/weapons/R41403.pdf.

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