So Near and Yet So Far: The International Arms Trade Treaty and Human Rights

Gilles Giacca 22nd March 2013

By Dr Gilles Giacca –

The renewed United Nations Conference on the Arms Trade Treaty opened on 18 March 2013 for a total of nine days. Optimism is running high that despite the very short time frame and the unseemly collapse of negotiations in July 2012, an agreement can be secured this time around. There is currently no international instrument that regulates the conventional arms trade.

The UN Secretary-General delivered his opening address on Monday 18 March, remarking that after a very long journey, the final destination is in sight. He said that the absence of international legal rules governing the arms trade “defies any explanation”, noting that even tomatoes, T-shirts, or toys are better regulated. Among the many questions surrounding the problem of irresponsible arms transfers are: where are they produced; How have they been licensed; what standards have been applied to assess the legality of proposed transfers? The biggest question was, though, “what to do about it?” The Secretary-General concluded his opening address with the clarion call that the international community owed a treaty “to all the victims and those risking their lives to build peace”.

Over the past decades, a number of regional and international instruments have been adopted to regulate arms transfers. To date, none has asserted global control over the transfer of all conventional weapons. Thus, a multilateral treaty of global scope could set a clear international standard for responsible transfers and close the gaps and inconsistencies that exist between the current range of domestic and regional arms export control systems. It is common knowledge that the availability of weapons and ammunition has led to human suffering, political repression, and widespread violations of human rights with a devastating impact on civilians caught in armed conflicts. Irresponsible transfers of conventional weapons can also destabilise security in a region and contribute to poverty. Indeed, arms spending as well as armed conflict and violence contribute to diverting public resources away from key social services and capital investment. Countries affected by armed conflict or high level of armed violence are unlikely to attain the Millennium Development Goals.

In the current draft of the Arms Trade Treaty being discussed the following conventional weapons are to be covered by the scope of the treaty: battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, as well as small arms and light weapons. However, it remains to be seen whether munitions/ammunition will ultimately come within the scope of the treaty.

Several draft provisions relate to human rights, notably the criteria governing denials of proposed arms transfer, an issue which is proving to be one of the most controversial aspects of the negotiations. The draft treaty states that governments must not approve arms sales to states where there is an “overriding risk” that the arms could be used to commit serious violations of human rights law or international humanitarian law. The controversy surrounds the implications of such a criterion for arms-importing States, who fear a political and subjective interpretation of the provision, thereby limiting their possibility to acquire weapons. At the same time, under its current wording (‘overriding risk’), the treaty would create a low international standard that in many cases would be weaker than current national legislation. Thus, a large number of states support the proposal to replace the term ‘overriding’ with ‘substantial’ or ‘clear’ risk. In any event, difficult questions of interpretation subsist about which arms may impact human rights? What is the meaning of the notion of ‘serious human rights violations’? There are no agreed definitions under international law.

It remains to be seen whether further efforts in the next eight days will reach consensus within the United Nations or if certain States may later decide to conduct negotiations outside the United Nations, in a similar way to which the 1997 Anti-Personnel Mine Ban Convention or the 2008 Convention on Cluster Munitions were elaborated. What is clear is that there is no international treaty that can truly satisfy all states.

Dr Gilles Giacca (Programme Co-ordinator of the Oxford Martin School Programme on Human Rights for Future Generations) is closely following the United Nations Conference on the Arms Trade Treaty in New York. Insights and daily updates on the current process can be found in the Arms Trade Treaty legal blog.

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