Following Dr Gilles Giacca’s post last Monday on the Arms Trade Treaty, Dr. Laurence Lustgarten argues that the Treaty is a historic accomplishment, but it has several limitations.

It would be churlish not to welcome the Arms Trade Treaty. It is the first of its kind in world history: an attempt to establish universal standards governing the sale of conventional weapons, including the small arms and light weapons (SALW) which Kofi Annan, when UN Secretary-General, rightly described as ‘the real weapons of mass destruction’ for the devastation they have in conflict zones, particularly in Africa.

Some elements of the Treaty are admirable: the scope is wide, including—after a hard struggle–ammunition in most instances. One article is specifically devoted to diversion. This is a crucial issue because some of the worst perpetrators of atrocities have acquired weapons ostensibly sold to legitimate purchasers through various illicit means. The Treaty also addresses brokering and transhipments, also ways that secret or concealed movement of caches of weapons can reach militias or governments subject to sanctions. An international Secretariat has been created, unfortunately without real power but with useful functions of gathering and circulating information States are required to submit annually; its effectiveness will depend heavily on sustained and adequate finance. Finally, the process of amendment, important in light of doubts about effectiveness of many aspects of the Treaty, is relatively easy. The requirement of 50 ratifications before coming into force should also be easily and quickly satisfied.

But (there is always a but)—one must question whether a treaty which could not command the signatures of two Permanent Members of the Security Council (Russia—a major arms exporter—and China), nor of India, Saudi Arabia, and Qatar—all importers on a massive scale–has started off on a hopeful path. All five of these countries abstained and will not ratify it; nor will the United States, which after getting its way on a number of major points, did sign but with no chance that constitutionally-necessary approval by the Senate will follow.

The price of agreement has been very high. The circumstances in which transfers are prohibited are very limited. Some instances, such as use of arms to commit genocide, crimes against humanity and related great evils, require ‘knowledge’ that this use ‘would’ occur. This is an absurdly high threshold, a feeble barrier in world politics where uncertainty, secrecy and dissimulation rule. The criminal law approach of ‘knows or ought to have known’ is high enough, and the very least that should have been acceptable. ‘Reasonably likely’ as opposed to ‘would’ similarly would have made the prohibition much more meaningful.

However, most transfers are not prohibited, but are subject only to national export ‘assessments’, a framework of regulation that seriously limits the Treaty’s effectiveness.  And even with respect to that lesser category of regulation, the final version has in two respects, been weakened compared to the draft put on hold last July. All mention of the arm trade’s adverse impact on development—i.e. arms purchases whose expense drains the wealth of poor nations that could be used on infrastructure, welfare or human capital investment—has been struck out. A number of purchasing states, led by India, hypocritically argued that including a provision on development would be a relic of colonialism, despite the fact that such a provision would inhibit sales, and therefore profits, of Western manufacturers. Mention of corruption—the hallmark of the arms trade—has also gone, though on one interpretation it may have been smuggled in by the backdoor.

There is also the problem, noted by Gilles Giacca in his earlier post, that exporters are asked to determine whether there is an ‘overriding risk’ that the weapons ‘could’ be used to commit ‘serious’ violations of, most notably, IHL and IHRL. This is, again, a discouragingly high standard, and all too easily misused to waive through a lucrative order. Attempts to replace ‘overriding’ with ‘significant’ were fiercely resisted.

General Assembly passage is only Round 1 of a long, bruising fight. The Treaty is an international law document, but it is much more: a set of standards and principles designed to be implemented in domestic law.  The real battleground will be implementation in states like Brazil and South Africa, with growing arms exports and few or no existing restrictions, and in importing countries, especially in Africa, which will need to establish effective administrative machinery to oversee and control imports. NGOs can have a major role to play in this respect — it would be a useful form of aid for EU states to assist with capacity building.

Don’t expect major impact any time soon, but don’t underestimate the moral force of the Treaty either.

 Laurence Lustgarten is Visiting Research Fellow at the Institute of Ethics, Law, and Armed Conflict [ELAC] and Associate Research Fellow at the Centre for Socio-Legal Studies.  His current research is devoted to a comprehensive study of controlling the arms trade.