Towards a Negotiating Mandate for an Arms Trade Treaty

Subject(s):
1 August 2009

Michael Spies

The second session of the UN Open-Ended Working Group (OEWG) on an Arms Trade Treaty (ATT), held from 13-17 July 2009 at the United Nations in New York, has moved the possibility of a negotiating mandate for the treaty a step closer, but divisions remain as some states, including many of the major arms exporters, continue to question the feasibility of an arms trade treaty.

Chaired by Ambassador Garcia Moritan of Argentina, in its final hours the OEWG was able to incorporate some language on substantive elements into its final report,[1] following efforts by Mexico in particular. Due to insufficient time, however, the OEWG was compelled to drop several key elements from the text-including elements previously agreed by the 2008 Group of Government Experts (GGE).[2]

The relatively weak language in the brief substantive portion of the Group's report disappointed many ATT proponents, who fear that the weakened positions could lock future work into a less comprehensive and less effective treaty. They argue such a treaty would add little to the existing patchwork of national and regional regulations on arms transfers.

Despite this the mood of the meeting was optimistic. The most notable outcome of the second session of the OEWG was the achievement of consensus, for the first time, on the need for "international action" to address the problem of the unregulated trade in conventional arms.[3] As a result there is growing expectation that some governments might push for early adoption of a negotiating mandate perhaps as soon as the upcoming 64th (2009) session of the UN First Committee.

Areas for Discussion

To pave the way for negotiations, the broad objective of the OEWG is to narrow differences on four areas of an ATT: goals and objectives; feasibility; scope; and parameters.

Goals and objectives refer to what the problems the treaty is meant to solve at the broadest level. They can be as narrow as preventing the illicit transfer of arms to terrorists or as broad as establishing rules and criteria affecting all arms transfers. They could also be anywhere in between, for example, prohibiting transfer of arms to abusers of human rights or international humanitarian law. With a wide range of divergent views on the table, many opponents of the Treaty have sought to delay negotiations by demanding that governments broadly agree on the goals and objectives of a potential treaty before consenting to any negotiating process.

Feasibility refers to the objective that an ATT be universal, objective and non-political, non-discriminatory, and include clear definitions. Several key governments continue to maintain that an ATT is not feasible, though the number of overt sceptics has dropped considerably since 2006.

Scope refers to the type of weapons and activities or transactions an ATT would cover. Activities and transactions potentially encompasses the full range of acts related to the transfer of weapons, from licensing and brokering to export, transshipment, and import, etc.

Parameters refers to the real substance of the treaty. For example, the potential range of principles or criteria that would give an exporter a presumption to deny an export, such as violation of human rights or the potential for the arms to be used to commit crimes or to violate international humanitarian law. They also cover the operational mechanism by which any such principles will be applied to arms transfer decisions.

NGO pressure for an ATT

Current efforts to establish an ATT can be traced back to the efforts made by Non-Governmental Organizations (NGOs) from the mid-1990s onwards. In 1997, a group of Nobel Peace Laureates, led by then former Costa Rican President Oscar Arias, published a draft International Code of Conduct on Arms Transfers. The basic object of that effort was to create criteria for the transfer of all types of weapons based on promotion of democracy, protection of human rights and transparency in military spending.[4] It sought to prohibit arms transfers to states that support terrorism or that are engaged in aggression against nations or peoples. The work of the Arias Foundation in the 1990s was instrumental in creating momentum for an ATT.

This effort was followed years later by the European Union's adoption of a Code of Conduct on Arms Exports, approved by EU foreign ministers on 25 May 1998.[5] The EU code established eight criteria for the approval of arms transfers, including relevant international commitments or treaties,[6] respect for human rights in the destination country, the existence of armed conflict in the destination country, the risk the arms will be used in aggression or to bolster a territorial claim, the national security of EU states, the destination country's support for terrorism, the risk of re-export, and the compatibility of the transfer with the economic capacity[7] of the recipient.

The work of the Arias Foundation and the Nobel Laureates picked up momentum in the 2000s. In 2000, a group of NGOs revised the 1997 Nobel Laureates' Code of Conduct. As part of this effort, in 2003 the group circulated a draft Framework Convention on International Arms Transfers to the First Biennial Meeting of States to the UN Programme of Action on Small Arms. The object of the draft Convention was to prevent the transfer of arms in violation of international law or obligations, or if the exporting state has reason to believe the weapons will be used to violate human rights or international humanitarian law or to commit crimes against humanity or genocide.

In 2003, the International Action Network Against Small Arms, Amnesty International, and Oxfam launched the Control Arms campaign, intended to establish a binding international agreement to control the arms trade according to established principles of human rights, humanitarian law, sustainable development, and peaceful international relations.

In 2004 the governments of Brazil, Cambodia, Costa Rica, Finland, Kenya, Iceland, Macedonia, Mali, the Netherlands, and the United Kingdom pledged to work toward an ATT. The largest arms exporter of this group, the United Kingdom, became a key driver of this effort after 2004.[8]

At a meeting from 20-22 February 2005 in Dar Es Salaam, 31 governments agreed to move forward a process to establish global principles on arms transfers based on existing international law.[9] The foreign ministers of the states of the Great Lakes and Horn regions of Africa announced their support for an ATT at the third Ministerial Review Conference of the Nairobi Declaration.[10] More governments announced their support for an ATT at the second biennial meetings of states to consider implementation of the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (UN Programme of Action on SALW).[11] The EU Council announced its support for the effort during its meeting in Luxembourg in October 2005.[12]

The ATT Process moves to the UN

At the 61st session of the UN General Assembly (UNGA) First Committee, seven states, Argentina, Australia, Costa Rica, Finland, Japan, Kenya and the United Kingdom, introduced a draft resolution to the First Committee, entitled "Towards an arms trade treaty: establishing common international standards for the import, export and transfer of conventional arms." The central element of the draft resolution was to request establishment of a group of governmental experts (GGE) in 2008 to examine the feasibility of such a treaty. The resolution also requested UN member states to submit their views to the UN Secretary-General by 30 April 2007.[13]

The First Committee adopted the resolution, co-sponsored by 116 states, with 139 governments voting in favour. The United States was the only government to vote against and 24 governments abstained. States that opposed the resolution and a prospective treaty generally focused on the necessity of a GGE, rather than directly expressing opposition to a treaty. The UN General Assembly subsequently adopted the text in December 2006 as resolution 61/89, with 153 states voting in favour.

In September 2007, the UN Secretary-General appointed the GGE, which included experts from 28 countries.[14] The GGE met in three sessions between February and August 2008 and adopted a final report by consensus. The GGE included nearly all major arms exporters, including many of whom had expressed doubts about feasibility of the ATT. Due to these difficult dynamics and the complexity of the issue, the GGE was recommended a slower, "step by step" process. Its major recommendation was for further consideration of the issue within the UN in an open and transparent manner on the basis of consensus-meaning through a process including the entire UN membership.

The GGE report, as well as an analysis of states' views by the United Nations Institute for Disarmament Research (UNIDIR), has also made plain the extent of disagreement on feasibility, scope, and parameters.[15]

UNIDIR noted seven members of the Group held the view that an ATT was not feasible - China, Egypt, India, Israel, Pakistan, Russia, and Venezuela. For sceptics, feasibility ATT rested on the definition of its goals and objectives. As a result the OEWG took up the task of discussing goals and objectives. The Group agreed that a feasible treaty would contain objective and agreed criteria that reflect the (separate) responsibilities of importers and exporters.

The GGE was unable to come to any agreement on scope, either on the weapons or activities to be covered. Some states focused on the categories of weapons used by the UN Register of Conventional Arms, with many governments suggesting the addition of small arms and light weapons and their ammunition. Some governments also advocated for coverage of parts and components, manufacturing technology, dual-use technology, explosives and new types of weapons or technology.[16]

The GGE also agreed little on parameters except for that an ATT should be based on the principles of the UN Charter with governments tending to emphasize Charter provisions on: excluding the threat or use of force; non-interference in the domestic relations of states; the right to individual or collective self defence, including the right to acquire arms; and the obligation to carry out the decisions of the Security Council, including arms embargoes. Related to common standards for arms transfers, states tended to favour criteria dealing with the risk or end-use of specific transfers and disfavour country-based assessments.[17]

Enter the Open-Ended Working Group

At the 2008 First Committee, the seven original sponsors of the ATT resolution tabled a new draft text, following closely on resolution 61/89.[18] Following on aspects of the GGE report, the new resolution included a decision to establish an Open-Ended Working Group, open to all states, to meet in six one-week sessions between 2009 and 2011 to consider where consensus can be found on a prospective treaty. [See tables at the end of this article for a comparison of the outcomes of the GGE and OEWG.][19]

The resolution picked up eight more votes in favour than the 2006 resolution and it shed six abstentions. Though this resolution faced some difficulties when the UN revealed it might not be able to finance the meetings, governments were able to work through this impasse, thereby allowing the UNGA to adopt the draft as resolution 63/240 in January 2009. Only the United States voted against.[20] Nineteen states abstained, including a number of Arab states, China, India, Iran, Israel, Pakistan, and Russia.

The mandate of the 2009 OEWG meetings was to consider elements from the GGE report where consensus could be developed for inclusion in an ATT, "which provides a balance giving benefit to all, with the principles of the Charter of the United Nations and other existing international obligations at the centre of such considerations."[21] The second session was also tasked with sending a report to the 64th (2009) General Assembly.

Goals and Objectives

If the first step toward articulating the goals and objectives of an ATT is identifying the problem, then the OEWG remains in a troubling condition. Though delegations made real progress in narrowing differences, fundamental issues remain unresolved. The OEWG was unable to move past the work of the GGE in clearly articulating what the goals and objectives of ATT would be.

Delegations continued to disagree over the problems caused by the unregulated arms trade, though the OEWG did inch forward slightly on a broader, common understanding of the dilemma. Whereas the GGE report recognized only the problems of international organized crime and terrorism,[22] the OEWG added instability to this list.[23] Some governments would have liked to see other problems specifically linked to the unregulated arms trade, such as its contribution to armed conflict-a connection that continues to be blocked by some major arms-exporting states.

On identifying goals, the OEWG was unable move past the lowest common denominator consensus of the GGE. Its report recognizes "the need to address the problems relating to unregulated trade in conventional weapons and their diversion to the illicit market."[24] Thus, states agree an ATT should prevent the diversion of arms to unauthorized users.

As pointed out by several delegations, preventing diversion is the responsibility of both arms exporters and importers. Some governments also want ATT to include standards on end use, focusing also on the unique responsibilities of importers. The OEWG was unable to move past the GGE's recognition that both importers and exporters have responsibilities to address the problems related to the illicit trade in conventional arms.[25]

The OEWG did not attempt to articulate any language dealing with the objectives. The majority of delegations continued to envisage the primary objective as establishing common international standards for export controls that are implemented through national legislation. Many delegations recognize the need to construct a Treaty that is resistant to political abuse, though some are sceptical that this can be achieved in a treaty that relies exclusively on national assessments of criteria. Consensus is unlikely to form around any type of external or UN-based verification or assessment mechanism.[26]

The Indian delegation continued to insist that a binding treaty is not the best way to create global export control standards. The Indian delegation said that it would like to see an ATT that is broader than just export controls. One of India's central arguments is the problem that some key governments hold national law as supreme over international norms. Other delegations, such as France, rejected this reasoning as an argument against a binding treaty.

The Russian delegation suggested that enhancing national control over conventional arms should be an objective. Russia and Egypt have both suggested that defining the objective of the Treaty is necessary before moving on to the issues of scope and parameters. Their argument is that the provisions of an ATT can only flow from its objectives.

Questioning Feasibility

The GGE had achieved consensus that, "To be feasible, a potential arms trade treaty would need clear definitions and be fair, objective, balanced, non-political, non-discriminatory and universal within the framework of the United Nations."[27] Though this language is not reflected in the OEWG's report, in statements made during the July session, delegations did not vary from these criteria.

Compared to the GGE, fewer governments in the OEWG explicitly or implicitly questioned feasibility, though China, India, Iran, and Russia expressed continuing scepticism. The Russian delegation aired the strongest reservations, continuing to question the wisdom of a global treaty and calling for an analysis of why existing regional and sub-regional mechanisms are insufficient to address the problems of an unregulated arms trade. Iran also described a legally-binding instrument as "premature".

In addition, some delegations suggested working towards an intermediate step. India and Japan made separate suggestions that a non-binding normative framework could help guide further negotiations. In India's view, such an endeavour would satisfy its requirement for a step-by-step process toward an ATT.

Disagreements on Scope

Delegations to the OEWG continued to express a wide range of divergent views on which weapons and activities are to be covered by an ATT. Like the GGE report, the report of the OEWG reflects the lack of substantive agreement.

Categories of Weapons

The majority of governments continues to advocate for a comprehensive Treaty that covers all types of conventional weapons. Such advocates generally agree that an ATT should cover the seven categories of weapons contained in the UN Register of Conventional Arms (UNRCA) plus small arms and light weapons (SALW), the so-called 7+1 formula.[28] Supporters of 7+1 include Cuba, Indonesia, and Singapore.

A larger number of delegations, including Argentina, Brazil, Bulgaria, Guatemala, Japan, Norway, South Africa, and Paraguay, support including ammunition as well and have dubbed this approach 7+1+1. Generally excluding use of UNRCA, several other delegations also called for specific inclusion of SALW and their ammunition, including Australia, Bulgaria, Canada, the Netherlands, New Zealand, Romania, and Uruguay.

A number of delegations and NGOs, especially those who see the ATT as a means to address the humanitarian and human rights problems related to the unregulated arms trade, cautioned that UNRCA should only be considered a starting point for discussion. They note that UNRCA, intended as a post-Cold War transparency measure relating primarily to the accumulation of major conventional weapon systems, omits "an extensive range of conventional weapons ... that are widely used in conflict and human rights crisis zones."[29] Such weapons include: military helicopters and aircraft other than those designated for "combat"; naval vessels with displacements of less than 500 tonnes; unarmoured military vehicles; artillery with a calibre of 75 mm or less; and some types of unmanned aerial vehicles.[30]

In addition, some have called for the inclusion of specific items not covered by UNRCA, including explosives, spare parts, new types of arms, dual-use items, technical expertise, and the financing of the illicit arms trade.

Complicating the matter further, some delegations have taken stands against incorporating both the UNRCA and many of the aforementioned items. Egypt has been particularly vocal in its opposition to using the UNRCA categories. Brazil, Egypt, and Indonesia argued against inclusion of dual-use items. Egypt argued against coverage of either expertise or new types of arms. Western states, such as the United Kingdom and the United States, have been keen to exclude sports weapons, though a few delegations have called for them to at least be taken into account.

The Russian delegation cautioned against a comprehensive scope, arguing that it would be impractical and infeasible to go from a situation where no global regulation exists to an all-encompassing treaty. The Russians called for a more targeted approach, perhaps focusing on SALW.

The International Committee for the Red Cross (ICRC) suggested that instead of compiling competing lists of items to be included, states should focus on what weapons should be excluded from a treaty. ICRC takes the view that an ATT should cover all conventional arms and negotiations should evaluate if there is reason to not include any given weapon system.

Treaty Coverage

Delegations also remained divided on the actions to be covered. The majority continued to advocate for an ATT to cover comprehensively all types of transfers,[31] including: import; export; re-transfer; loans; transshipment or transiting; and brokering.[32]

India cautioned that arms transfers within military alliances should not be exempt from coverage.[33]

Some delegations still argue that a narrow, targeted, or selective approach would lead to a more effective treaty. Egypt was the most vocal, arguing that an ATT should focus on preventing illicit brokering rather than trying to regulate or impose restrictions on activities that are presently permitted.

Some delegations also called for a Treaty to cover actions not strictly related to arms transfers. India and Pakistan made arguments for the inclusion of specific aspects of arms production and the accumulation of arms. Such a provision would not be entirely without precedent as the UN Register of Conventional Arms, inter alia, requests states to provide information on arms holdings and procurement through national production.[34]

Top 20 Arms Suppliers 2003-2008

Rank State % of total US$ (mil) 1 United States 30.51 34,901 2 Russia 24.95 28,536 3 Germany 10.01 11,450 4 France 8.40 9,607 5 United Kingdom 4.49 5,132 6 Netherlands 3.32 3,803 7 Italy 2.41 2,761 8 Spain 1.86 2,123 9 Ukraine 1.82 2,083 10 Sweden 1.76 2,012 11 Israel 1.75 2,007 12 China 1.67 1,908 13 Canada 1.16 1,322 14 Switzerland 1.10 1,262 15 Belgium 0.62 704 16 Poland 0.48 549 17 South Korea 0.39 450 18 South Africa 0.37 427 19 Finland 0.21 244 20 Montenegro 0.18 208 All others 2.53 2,889 Total 100 114,386

Source: SIPRI Arms Transfers Database.
Figures are expressed in USD (millions) at constant 1990 prices and may not add up due to rounding.

Parameters

The issue of parameters also continued to be highly divisive with governments still unable to agree to more than a baseline of placing the principles of the UN Charter at the centre of an ATT.[35] The OEWG discussions focused on two primary areas: what principles should be applied; and how principles could or should be applied.

The OEWG sought to make progress towards identifying a common set of standards where governments would have a presumption to deny an arms transfer. Delegations agreed that any such criteria should be drawn from existing international law and that an ATT would not create any new international norms. The chair noted a general view that any parameters must be objective, non-discriminatory, and politically stable.

The discussions continued to reveal a widely divergent, but not necessarily irreconcilable, range of views regarding applying the principles of the UN Charter, international humanitarian law, human rights law, or other existing international principles to arms transfer decisions. The Indian delegation opined that the Group's inability to agree on parameters was closely linked to the lack of consensus over the goals and objectives of an ATT.[36]

Consistency with UN Charter

There continued to be consensus on the bottom line that any ATT should be based on, or at least not inconsistent with, the principles of the UN Charter, which should be applied in a non-discriminatory way. A number of governments cited the need to ensure adherence to the Charter's provisions barring the threat or use of force,[37] non-interference in the domestic affairs of states,[38] implementation of UN Security Council decisions including arms embargoes[39] and the right to individual or collective self-defence.[40]

Beyond the UN Charter, the only principle that enjoys consensus is that governments should prevent arms transfers that risk diversion to terrorist or organized criminal use.

International Humanitarian Law

Statements to the OEWG expressed broad, cross-regional support for incorporating international humanitarian law (IHL), though few identified specific principles.[41] In a compilation of global principles for an ATT, a group of NGOs argued that arms transfers should be denied when they are likely to be used to commit: gross violations of IHL; serious violations of IHL; or genocide and crimes against humanity.[42]

A number of delegations also expressed support for using an ATT to deal with humanitarian issues stemming from armed conflict.[43] Potential provisions dealing with armed conflict include preventing arms transfers to conflict regions[44] or preventing arms transfers to users that national authorities assess might engage in humanitarian offences.

Human Rights

Inclusion of human rights standards also continued to see cross-regional support, though with less widespread enthusiasm than IHL.[45] Pakistan spoke out against inclusion of human rights standards, arguing that, in a treaty based on national-based implementation, such national assessments would be subject to political abuse.

A number of delegations also called for incorporation of human, social, or economic development needs-likely in the form of some criteria that mandate an exporting state to assess whether or not the importing state is diverting resources from the needs of its population through arms purchases. Others called for arms transfer decisions to take into account regional stability.

Few delegations spoke against inclusion of IHL and human rights standards in an ATT-China, however, did remark the subjects should be "handled with caution". It is clear from the lack of consensus-aside from the anodyne recognition that both importers and exporters have responsibilities-that some continue to stand against inclusion of such standards, at least until greater clarity is achieved on identifying the principles and objectives.

Other Issues

Perhaps crucial to securing and maintaining support for an ATT, a number of governments have cautioned that a Treaty must not overrule existing national or international export control standards. Norway suggested the treaty should allow for states to adopt and maintain standards that are more stringent than that imposed by an ATT. The United States echoed this sentiment, warning that it would not be interested in any effort that undercut its existing export controls or that permitted arms transfers to "destabilizing users".

Several delegations, including developed and developing states, recognized the need for cooperation and assistance to small states in implementing the treaty. France specified such measures must be voluntary.

A number of delegations cited the need for transparency and reporting provisions and no one spoke against such measures. Some delegations called for some form of verification and compliance mechanism, though Italy argued it would not be feasible to empower some international body with the authority to overrule national decisions to deny an arms export. As noted by the UK Ambassador, there is no right to receive an arms import.

Applicability

Governments must also decide how any such standards are to be applied to arms transfer decisions. Most governments and NGOs continued to focus on the approach of assessing whether the risk of a given transfer might be used or diverted to illicit use-a risk assessment approach-rather than making decisions based solely on the record of the recipient. This approach is broadly consistent with that advocated by the ICRC,[46] as well as that taken by the Nairobi Protocol, ECOWAS Convention on SALW, and proposals of the Control Arms Campaign.

The risk assessment approach differs from the standard enacted by the EU in its Code of Conduct, which requires members to assess the IHL record of the recipient, though the United Kingdom has advocated for risk assessment in the context of the ATT. Amnesty International has advocated for a multi-tracked assessment including both the risk a transfer might be used or diverted to commit human rights violations[47] and the recipient's respect for-or its attitude towards-human rights law.[48]

Action and Next Steps

The most notable outcome of the second session of the OEWG was its expression of support for "international action" to address the problem of the unregulated trade in conventional arms. For ATT supporters, such an acknowledgment represented a major victory in that it signals consensus within the UN system for some form of action, though without specifying what form that action might take.

A few governments and many NGOs expressed optimism that the upcoming session of the UN General Assembly might be able to contemplate a negotiating mandate. Statements delivered by a few delegations, however, seemed to flatly preclude this possibility, signalling that no action would be conceivable until the OEWG concludes the full term of its mandate in 2011.[49]

Given the large number of major differences on nearly every aspect of an ATT, the remaining sessions of the OEWG, representing only four weeks of meetings spread over two years, might be hard pressed to achieve consensus on any of the items on its agenda. Support for more substantive discussions came from surprising places, however. The United States, offering an "administrative point of caution," argued that the one-week format of the OEWG was insufficient and appealed to states to consider ways to adjust its mandate.

Conclusions

Since the conclusion of the GGE, opposition to an ATT per se has all but evaporated and all governments now agree some form of international action should be taken. Despite this, doubts about feasibility remain amongst several key arms exporting and importing governments, most vocally Egypt, India, and Russia.[50] There is also still no consensus on whether international action should take the form of a legally-binding treaty-the type of action favoured by the overwhelming majority of states.

One-third of the way through its three-year mandate, the OEWG still finds itself in discussion mode, rather than in drafting mode, as it has yet to attempt to work out agreements over the basic goals and objectives, scope, and parameters of an ATT. In the upcoming session of the UN General Assembly, it is possible that ATT proponents may be able to leverage the consensus on the need for international action into agreement for steps beyond the OEWG. Some may still find it premature for a preparatory committee for an international conference to conclude an instrument; an expanded discussion format with a stronger negotiating mandate may be possible.

Absent agreement on the basic elements, rushing the process, may run the risk of failing to secure agreement on key features of an effective Treaty-particularly giving it a legally-binding character and ensuring its scope is sufficient to actually deal with the humanitarian and human rights concerns that gave rise to this initiative. In the end, getting it right should prove to be more important than doing it fast.

It might be fruitful to make progress first toward identifying the problem. The Russian delegation continues to hold a firm position on the necessity of gaining a better understanding of the failing points of regional and sub-regional approaches. In the context of SALW, in 1995 the General Assembly agreed to establish a government expert panel to explore and agree to the nature of the problem first as governments and NGOs built momentum toward what eventually become to the UN Programme of Action. After agreeing to the nature of the problem in 1997, states were able to secure agreement in the next year on both a follow-up process and on a deadline for achieving agreement on action.

The result of the 2008 GGE was especially disappointing in that it was particularly weak on reaching agreement on the problems to be solved, citing only diversion to unauthorized users, transnational crime, and terrorism. For the OWEG, coming to a common understanding of the goals and objectives may go a long way toward settling the feasibility issues and perhaps even breaking down the final barriers of resistance toward negotiating some form of binding treaty.

NGOs have clearly articulated their visions for the principles and objectives of an ATT. Governments should use the upcoming sessions of the OWEG to achieve such a vision as well.

Notes

[1] Report of the Open-ended Working Group towards an Arms Trade Treaty: establishing common international standards for the import, export and transfer of conventional arms, A/AC.277/2009/1, United Nations, New York, 17 July 2009.

[2] Report of the Group of Governmental Experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms, A/63/334 United Nations, New York, 26 August 2009.

[3] A/AC.277/2009/1, paragraph 23.

[4] Introductory Memorandum, Nobel Peace Laureates' International Code Of Conduct On Arms Transfers, May 1997.

[5] Wade Boese, "European Union Adopts Code of Conduct on Arms Sales," Arms Control Today, May 1998.

[6] Such as UN Security Council resolutions, arms control treaties, and other export control guidelines.

[7] To ensure the recipient is meeting its legitimate security needs with the least diversion from human and economic resources.

[8] UK Foreign Secretary Jack Straw announced on 30 September 2004 at the Labour Party annual conference that the United Kingdom would work toward an ATT.

In March 2005, Straw suggested six points to guide the process for the Treaty, including that it should: be legally-binding; negotiated in the UN and backed by the UN's authority; cover all conventional arms not just small arms; be a separate, self-standing initiative; be based on "certain core principles which make clear when exports would be unacceptable"; have an effective mechanism for enforcement and monitoring; include a wide range of signatories, including the world's major arms exporters. UK Foreign Secretary Jack Straw, "Securing a Global Arms Trade Treaty," Speech at the Institute of Civil Engineers, London, 15 March 2005.

[9] "Towards an Arms Trade Treaty," Briefing Paper, Control Arms Campaign, June 2005.

[10] "Regional Support for Arms Trade Treaty," Press Release, Control Arms Campaign, 12 July 2005.

[11] "13 more governments announce support for an Arms Trade Treaty," Press Release, Control Arms Campaign, 15 July 2005.

[12] "EU announces support for international Arms Trade Treaty," Press Release, Control Arms Campaign, 5 October 2005.

[13] These views are available at: www.un.org/disarmament/convarms/ArmsTradeTreaty/html/ATT-ViewsMS.shtml.

[14] Algeria, Argentina, Australia, Brazil, China, Colombia, Costa Rica, Cuba, Egypt, Finland, France, Germany, India, Indonesia, Italy, Japan, Kenya, Mexico, Nigeria, Pakistan, Romania, Russian Federation, South Africa, Spain, Switzerland, Ukraine, the United Kingdom, and the United States.

[15] See Sarah Parker, "Analysis of States' Views on an Arms Trade Treaty," United Nations Institute for Disarmament Research, Geneva, November 2008.

[16] Ibid, p. 5-6.

[17] Ibid, p. 9-11.

[18] See Michael Spies, "Between Irrelevance and a New Era: Report on the 2008 First Committee," Disarmament Diplomacy, 89, Winter 2008.

[19] For a comprehensive assessment of government responses to UNGA resolution 61/89 and position on all aspects of an ATT, see Control Arms Campaign, "A Global Arms Trade Treaty: What States Want," November 2007.

[20] Zimbabwe joined the United States in voting against the draft resolution in the First Committee, but switched its vote to yes in the General Assembly. The vote in the First Committee was 147 in favour, 2 against, with 18 abstentions. The vote in the General Assembly was 133 in favour, 1 against, with 19 abstentions. Due to the unusual timing of the vote in the General Assembly, fewer states participated in the vote than in 2006. See "Between Irrelevance and a New Era: Report on the 2008 First Committee," above for a full breakdown of voting.

[21] A/63/240, paragraph 5.

[22] "The Group observed that the weapons being traded in the illicit market can be used for terrorist acts, organised crime and other criminal activities." A/53/334, paragraph 28.

[23] The Group noted the diversion of arms from the legal trade fuels "instability, international terrorism, and transnational crime." A/AC.277/2009/1, paragraph 23.

[24] Ibid, paragraph 19.

[25] Ibid, paragraph 22.

[26] Parker, 2008 notes little support for any form of standing body or secretariat that is empowered to make decisions on making arms export determinations or authorizations.

[27] A/63/334. paragraph 17.

[28] The seven categories of weapons covered by UNRCA include: I. Battle Tanks (weighing at least 16.5 tonnes with a main gun of a calibre of at least 75 mm); II. Armoured Combat Vehicles (designed to carry four or more infantrymen or armed with at least a 12.5 calibre gun or a missile launcher); III. Large Calibre Artillery Systems (with a calibre greater than 75 mm); IV. Combat Aircraft (excluding unarmed trainers); V. Attack Helicopters (defined as possessing integrated fire controls); VI. Warships (with a displacement of more than 500 tonnes or those that can launch missiles or torpedoes greater than 25 km); VII. Missiles and Missile Launchers (with a range greater than 25 km and including cruise missiles and all man-portable air defence systems). In 2006, the UN General Assembly provided for the optional reporting of SALW, which is considered by some as an unofficial eighth category. See UN General Assembly resolution 46/36 L (1992). See also resolutions A/49/316, A/52/316, A/55/281, A/58/274 and A/61/261.

[29] Joseph Farha and Roy Isbister, "The Arms Trade Treaty and military equipment: The case for a comprehensive approach," Saferworld, London, July 2009.

[30] Ibid.

[31] Delegations advocating for a comprehensive approach included Argentina, Bulgaria, Canada, Costa Rica, Cote d'Ivoire, Finland, Guatemala, Indonesia, Mexico, the Netherlands, New Zealand, Norway, Paraguay, Peru and Switzerland.

[32] See "Global Arms Trade Treaty: What States Want," Control Arms Campaign.

[33] For India, such an outcome would meet its definition of a "non-discriminatory" ATT.

[34] A/RES/46/36 L, paragraph 7.

[35] A/AC.277/2009/1, paragraph 22.

[36] This is consistent with views of the more sceptical delegations, which believe the Group must agree to the goals and objectives, which would guide further discussions.

[37] Article 2.4 of the UN Charter: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."

[38] Article 2.7 of the UN Charter.

[39] Article 25 of the UN Charter.

[40] Article 51 of the UN Charter.

[41] Delegations expressing support for inclusion of IHL principles included Argentina, Australia, Brazil, Bulgaria, Canada, Cote d'Ivoire, Kenya, Guatemala, Nigeria, Norway, Palestine, Paraguay, and Uruguay.

[42] Arms Trade Treaty Steering Committee, "Compilation of Global Principles for Arms Transfers," Amnesty International, 2007. At the time of publication, the ATT Steering Committee included the following NGOs: the Africa Peace Forum, the Albert Schweitzer Institute, Amnesty International, Arias Foundation for Peace and Human Progress, Caritas Internationalis, the Friends Committee on National Legislation, Nonviolence International Southeast Asia, the International Action Network on Small Arms, Oxfam International, Project Ploughshares, Saferworld, Sou da Paz, Viva Rio, and the Women's Institute for Alternative Development.

[43] Notably, the United States expressed support for addressing problems related to crimes against humanity, terrorism, and crime.

[44] In resolution A/RES/46/36 L, the UN General Assembly, inter alia, called on states "to exercise due restraint in exports and imports of conventional arms, particularly in situations of tension or conflict". Though non-binding, the repeated adoption of such language by the UNGA demonstrates the political viability of the principle of restricting arms transfers to regions of conflict. Consensus on common standards for the practical implementation of such a standard may prove difficult to achieve, however.

[45] Delegations expressing support for inclusion of human rights standards included Argentina, Brazil, Bulgaria, Canada, Colombia, Guatemala, Kenya, Norway, and South Africa.

[46] International Committee of the Red Cross, "Arms Transfer Decisions: Applying international humanitarian law criteria: Practical Guide," Geneva, June 2007.

[47] Amnesty International, "How to Apply Human Rights Standards to Arms Transfer Decisions," Amnesty International Publications, London, 2008.

[48] Respect or attitude toward human rights law would be measured by a number of factors including a recipient's participation to key human rights instruments, its enactment of national legislation related to those instruments, its capacity for preventing and punishing human rights abuses and its cooperation with UN human rights bodies.

[49] Delegations signalling opposition to moving quickly toward a negotiating mandate included India, Russia, and the United States. These delegations, including the United States, also tend to support the so-called step-by-step process.

[50] China backed the Russian position on the issue of feasibility, but otherwise did not contribute much to the discussion.

Table 1. Areas of Agreement identified by the 2008 Group of Government Experts (A/63/334)

Goals and Objectives

The need to identify goals and objectives. "The group recognized that the key condition to answer the question of feasibility would lie with the clear definition of the fundamental goals and objectives of a potential arms trade treaty." (para. 17)

Problems to be addressed. "The group observed that the weapons being traded in the illicit market can be used for terrorist acts, organized crime and other criminal activities. In addition, the Group acknowledged the need to prevent the diversion of conventional arms from the legal into the illicit market." (para. 28)

"The group also recognized that numerous unresolved issues in the global conventional arms trade required further discussion." (para. 15)

Feasibility

Requisite criteria. "To be feasible, a potential arms trade treaty would need clear definitions and be fair, objective, balanced, non-political, non-discriminatory and universal within the framework of the United Nations." (para. 15)

Scope

No Agreement.

Parameters

Sources of law. "Experts agreed that principles enshrined in the Charter of the United Nations would be central to any potential arms trade treaty." (para. 24)

Responsibilities of importers and exporters. "The group acknowledged the respective responsibilities of exporters and importers." (para. 29)

Actions to be Taken

Step-by-step UN Process. "further consideration of efforts within the United Nations to address the international trade in conventional arms is required on a step-by-step basis in an open and transparent manner to achieve, on the basis of consensus, a balance that will provide benefit to all, with the principles of the Charter of the United Nations at the centre of such efforts." (para. 27)

National measures. "In order to begin improving the current situation, the Group recognized the need for all States to ensure that their national systems and internal controls are at the highest possible standards, and that States in a position to do so could render assistance in this regard, upon request." (para. 29)

Table 2. Areas of Agreement identified by the 2009 Open Ended Working Group (A/AC.277/2009/1)

Goals and Objectives

Problems to be addressed. The group recognized "the need to address the problems relating to unregulated trade in conventional weapons and their diversion to the illicit market" (para. 23)

It also recognized that diversion fuels "instability, international terrorism, and transnational crime." (para. 23)

Scope

No Agreement.

Parameters

Responsibilities of importers and exporters. "respective responsibilities exist for both exporters and importers to address the current situation, based on the principles established in the United Nations Charter, in a non-discriminatory manner." (para. 22)

Actions to be Taken

International Action. "the Group supports that international action should be taken to address the problem." (para. 23)

Michael Spies was part time Research Associate with the Acronym Institute for Disarmament Diplomacy until taking a job with the United Nations Office of Disarmament Affairs in September 2009. The author gratefully acknowledges the assistance provided by the Acronym Institute and Mark Marge of the International Action Network Against Small Arms (IANSA) in the preparation of this report.