What is the Arms Trade Treaty?
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What is the Arms Trade Treaty?

November 26, 2019


So, the Arms Trade Treaty is an
international, in my view, disarmament treaty that establishes criteria for
when the transfer of conventional arms may be lawful. So, by conventional arms of
course we mean arms other than weapons of mass destruction. Now the Arms Trade
Treaty does not cover every single conventional weapon, but it does cover
the vast majority. Perhaps notable emissions are hand grenades, for example,
anti-personnel mines. for example. But it’s a disarmament treaty
with a humanitarian, a very strong, humanitarian element to it, so when a
state is considering transferring, exporting to another country, it has to
look at what will be the consequences if we transfer those weapons. How are they
going to be used? Are they going to be used in accordance with international
law? If not, what is the risk that they are going to be used in violation and
how if possible can we mitigate those risks in order to allow the transfer to
go ahead? Well, right at the outset there was this
almost banal statement that bananas are more regulated than arms and at the time
it was true, there was more international regulation of fruit than there was of
these deadly weapons. That clearly cannot be right. There were more informal
political arrangements, one called the Wassenaar Arrangement, the EU has a position
on arms transfers, obviously domestically, some states have prohibitions or
moratorium on certain weapons. But to not have this sector regulated was a clear
anomaly and to a certain extent I think we’ve addressed it. Well, probably the biggest
innovation was this idea that international human rights law,
international terrorism law, international humanitarian law, are
criteria that an exporting state must assess when it is considering
authorizing a transfer and it must consider whether the arms, for example,
might be diverted to illicit purposes and if so, what the likelihood
was that those weapons would be misused. It was possible to argue by analogy
beforehand, under the law of state responsibility, that there were already
obligations but there wasn’t the clear and fast rules that we have set
out in Article 7 and for that reason in the commentary, a lot of space is devoted
to that provision because I think it is an innovation in international law. The old joke about what’s the difference
between a pessimist and an optimist. A pessimist says ‘things can’t get any
worse’ and an optimist says ‘oh yes they can’ and that’s the danger that we find
ourself at the moment and there’s one particular scenario that brings that to
the fore and that’s Saudi Arabia and the coalition’s use of force in Yemen. I have
argued quite strongly that the UK and other European and Western nations that
are supplying weapons to Saudi Arabia, given how these weapons are being used
in Yemen, is a violation of international law and a violation of the Arms Trade
Treaty in particular. It is clear that some of the targeting in Yemen has been
indiscriminate. Indeed earlier this summer, we saw the British government
tell Parliament that in fact when they said they had assessed the risk of Saudi
Arabia misusing these weapons, in fact they hadn’t assessed the risk of Saudi
Arabia misusing. That is a very clear admission of an Arms Trade Treaty
violation. Now, subsequently in the autumn they have backed away from that position,
but they’ve gone on to even more dangerous territory by suggesting that
you only prohibit a transfer if it’s going to be used for a war crime. That’s
not what the treaty says and we make that very clear in the commentary on
Article 7. A serious violation of international humanitarian law, yes,
includes war crimes, absolutely, but it is not limited to war crimes. It includes
indiscriminate attacks even where you don’t have the requisite intention to kill or injure civilians. Although I made clear my
concerns in particular around transfers to Saudi Arabia based on what is
happening at the moment, that does not mean that the treaty is a failure,
because it’s not. It doesn’t mean that the treaty will be a failure, because I
don’t believe it will. It was clear at the beginning of the negotiations, you
don’t turn around a sixty billion dollar market overnight. It takes time, it
effort and I think we will need to look back in a decade from now to really
assess how the ATT has hopefully worked and where there are problems, what those
problems are and how we can address them. It would be too soon to make a judgement
either way as to the success of the ATT, but I think the fact that it exists,
despite opposition from a small number of states, the fact that it exists is a
first step. The ratification levels are increasing – that’s positive, but we do
have concerns about implementation. There is a clear requirement to set up a
control regime. One that makes these assessments, assesses whether weapons are
going to be used for crimes against humanity or war crimes. Assesses, if not,
whether arms are going to be used, or what the likelihood is that arms
are going to be used in violation of human rights law or international
humanitarian law. In terms of the establishment of the control regimes, I
think we can see some progress. States are setting up the requisite
inter-ministerial, or official bodies, to do those analyses. I think though,
internationally the implementation has been more problematic and we see that in
the context of the annual conferences of States Parties. States Parties to the
convention get together once a year formally to look at the status and
operation of the convention and it is clear that they are very reluctant to
look at the criteria for transfer and how those are being applied. They’re much
happier talking about universalization of the treaty and the establishment of
the control regime. Those are important, but so are the criteria for arms
transfers.

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