As seemed likely, the recent Diplomatic Conference on the Arms Trade Treaty ended without the consensus it needed to come up with an Arms Trade Treaty. So the question is what next? This question is relevant as the Arms Trade Treaty campaign is unlikely to wither away just yet. For example, a few days ago the UK Government said in an open letter (http://www.fco.gov.uk/en/news/latest-...) that “the UN General Assembly in the autumn, to which the [Diplomatic] Conference President is sending his report, will be the next opportunity to address the issue amongst the whole UN membership. Our priority will be to bank the progress we’ve made and sustain momentum to agree a Treaty”.
The draft treaty on which the consensus required could not be reached is here: http://reachingcriticalwill.org/image.... According to one NGO account (http://www.globalpolicyjournal.com/bl...), its opponents include the US, China, Russia, Venezuela, North Korea and Cuba.
It is not surprising that states such as North Korea oppose the Treaty, as they must fear the end of the global arms free-for-all might deny their regime what it needs to cling on to power. So, at the very least, an effective Treaty must have all the major exporters signed up and implementing it seriously. That way is probably the easiest way of dealing with opponents such as North Korea – isolate them from as many sources of supply as possible. Thus, the opposition of the US and Russia, currently the top two arms exporters in the world (http://www.sipri.org/yearbook/2012/06) and China, which is number six, is a serious problem (I am not suggesting that these three countries are major suppliers to North Korea – simply that, given the volume of arms they export, if they are not signed up to an Arms Trade Treaty and implementing it seriously, many appalling regimes will find it much easier to get hold of weapons).
The flaws in the draft Treaty I discussed in a previous post are largely still there: http://www.goodreads.com/author_blog_.... In some respects it is worse: for example whereas previously there had to be a “substantial” risk that an export of arms would be used to commit or facilitate SERIOUS violations of international law or international humanitarian law, or to commit terrorism for it to be denied, now there must be an “overriding” risk.
It is clear (to me at least) that the Treaty is unlikely to be a success. For example the EU already has much stronger rules that the draft Treaty in its EU Common Position. But as Professor Neil Cooper says rightly (http://www.caat.org.uk/issues/att/att...), the evidence is that despite well established consultation mechanisms practice varies widely. Further, as a recent UK Parliamentary report has shown, even these much stricter criteria cannot prevent States making incautious judgements when deciding about arms exports to human rights abusing regimes (http://www.parliament.uk/business/com...). Ultimately the EU Code of Conduct, now the Common Position did not stop the UK recently arming Colonel Gaddafi, a man with a well-established track record as a terrorist and human rights abuser. So the obvious question is, given a Treaty which the major exporters can all agree on is likely to be weaker than the current draft, is it worth pursuing a Treaty at the UN?
The UK Government clearly believes it is, citing five reasons. The first is tenuous – a global first in having a regulatory structure. But if the regulatory structure is hopelessly ineffective, all it does is bring agreements such as this into disrepute. The second again is tenuous – it will be the “first” agreement governing the export of small arms and light weapons. The same comment again applies – the regulation is only worthwhile if effective at least to some extent. The third reason misrepresents the draft – it says that arms exports will be assessed on the basis of certain criteria – true – and will be refused if they pose “unacceptable risks”. This is untrue – unless you believe the only arms exports that are unacceptable are those where there is an OVERRIDING risk that the export could be used to commit or facilitate SERIOUS violations of international law or international humanitarian law, or to commit terrorism. The fourth reason is similar to the first and second – a commitment to regulate arms brokering. And the fifth reason – mandatory reporting – is in reality toothless as there are no specifics about what has to be reported and so the reports could, and probably will be in many cases, leave the reader unable to assess how effectively, if at all, the State concerned has implemented the Treaty.
One NGO commentator, present at the talks, has recently claimed (http://attmonitor.blogspot.co.uk/2012...) “the [Arms Trade Treaty] in its most attractive form might have had an impact on diverted transfers several years down the road”. If you accept the analysis above, that can only be true if the Treaty can be changed to something much stronger when already agreed and ratified. Professor Neil Cooper put it nicely “A strong [Arms Trade Treaty] may have the potential to grow and develop so that it establishes a new normative consensus capable of really influencing the practice of states…the wording of clauses on human rights and international humanitarian law may be of less significance than the powers the agreement provides to any implementation unit created to oversee a new [Arms Trade Treaty] regime”.
Here the draft Treaty is extremely problematic, because there is no enforcement mechanism, and because there is no provision for regular Conferences of State Parties. Indeed the first such Conference has to decide how regular the meetings are. If agreement cannot be reached about how often to meet, there may well not be a meeting for a very long time, as it would be in the interests of those wishing to keep the Treaty weak to refuse to agree to one. So the idea the Treaty could be made stronger over time seems highly unlikely to be realised unless the current draft text is changed quite radically.
And what is obviously the worst outcome is a really weak and ineffective Treaty which cannot be changed. Because that will be the end of the road as far as international agreement on the arms trade goes. So, to me at least, there seems little point in continuing to negotiate. Better to retire gracefully from the battlefield and fight another day (so to speak).
What other options are there? Well, for all its flaws, perhaps one would be to try and expand the EU Common Position into an international agreement between the willing. The more countries that come aboard, the better, and, perhaps, over time, with positive political change in countries such as China and Russia (well we may be waiting a while for that, but I hope it will happen), Cooper’s suggestion might become more realistic. Of course the EU Common Position is hardly perfect, and certainly many of the EU countries, like the UK, ought to take a far less permissive approach to arms exports than they currently do. So if I was the UK Government, I would be looking at the 90 countries (http://reachingcriticalwill.org/image...) who expressed the desire to bring the current Arms Trade Treaty text to the UN General Assembly First Committee to “finalize our work” to achieve “a strong and robust Treaty”, and seeing if they would be willing to sign something as “strong” as the EU Common Position. That would be better than what we have now (although not much), and does not make things worse.
Ultimately what is lacking is political will in sufficient countries, and political will can only be generated from within. This could happen. Thirty years ago, the UK was strongly against any international agreement to deal with bribery. Today, the UK is part of an international agreement with most of the significant exporting countries, and has, as a result, one of the strongest anti-bribery laws in the world. So change can happen. But it may take a long time.
There is one final lesson for me from this attempt to impose some control on the international arms trade. I agree with Dr Zuber of Global Action to Prevent War
(http://attmonitor.blogspot.co.uk/2012...) that “we should also rethink how we ‘sell’ the [Arms Trade Treaty] to the global public and avoid generating expectations that put pressure on a document that was never likely to fulfill those expectations. The [Arms Trade Treaty] in its most attractive form might have had an impact on diverted transfers several years down the road. It never was conceived as a disarmament obligation or as necessarily the ‘game changer’ for the UN system that many of its loudest proponents claimed”. I was saddened to see the constant claims during the negotiations that if the Arms Trade Treaty was in place, the Russians would not arm Assad. This was patently false. These silly claims simply discredit those who make them, and generate cynicism towards future efforts to promote change. It is far better to be honest and open about what is and is not achievable.
The draft treaty on which the consensus required could not be reached is here: http://reachingcriticalwill.org/image.... According to one NGO account (http://www.globalpolicyjournal.com/bl...), its opponents include the US, China, Russia, Venezuela, North Korea and Cuba.
It is not surprising that states such as North Korea oppose the Treaty, as they must fear the end of the global arms free-for-all might deny their regime what it needs to cling on to power. So, at the very least, an effective Treaty must have all the major exporters signed up and implementing it seriously. That way is probably the easiest way of dealing with opponents such as North Korea – isolate them from as many sources of supply as possible. Thus, the opposition of the US and Russia, currently the top two arms exporters in the world (http://www.sipri.org/yearbook/2012/06) and China, which is number six, is a serious problem (I am not suggesting that these three countries are major suppliers to North Korea – simply that, given the volume of arms they export, if they are not signed up to an Arms Trade Treaty and implementing it seriously, many appalling regimes will find it much easier to get hold of weapons).
The flaws in the draft Treaty I discussed in a previous post are largely still there: http://www.goodreads.com/author_blog_.... In some respects it is worse: for example whereas previously there had to be a “substantial” risk that an export of arms would be used to commit or facilitate SERIOUS violations of international law or international humanitarian law, or to commit terrorism for it to be denied, now there must be an “overriding” risk.
It is clear (to me at least) that the Treaty is unlikely to be a success. For example the EU already has much stronger rules that the draft Treaty in its EU Common Position. But as Professor Neil Cooper says rightly (http://www.caat.org.uk/issues/att/att...), the evidence is that despite well established consultation mechanisms practice varies widely. Further, as a recent UK Parliamentary report has shown, even these much stricter criteria cannot prevent States making incautious judgements when deciding about arms exports to human rights abusing regimes (http://www.parliament.uk/business/com...). Ultimately the EU Code of Conduct, now the Common Position did not stop the UK recently arming Colonel Gaddafi, a man with a well-established track record as a terrorist and human rights abuser. So the obvious question is, given a Treaty which the major exporters can all agree on is likely to be weaker than the current draft, is it worth pursuing a Treaty at the UN?
The UK Government clearly believes it is, citing five reasons. The first is tenuous – a global first in having a regulatory structure. But if the regulatory structure is hopelessly ineffective, all it does is bring agreements such as this into disrepute. The second again is tenuous – it will be the “first” agreement governing the export of small arms and light weapons. The same comment again applies – the regulation is only worthwhile if effective at least to some extent. The third reason misrepresents the draft – it says that arms exports will be assessed on the basis of certain criteria – true – and will be refused if they pose “unacceptable risks”. This is untrue – unless you believe the only arms exports that are unacceptable are those where there is an OVERRIDING risk that the export could be used to commit or facilitate SERIOUS violations of international law or international humanitarian law, or to commit terrorism. The fourth reason is similar to the first and second – a commitment to regulate arms brokering. And the fifth reason – mandatory reporting – is in reality toothless as there are no specifics about what has to be reported and so the reports could, and probably will be in many cases, leave the reader unable to assess how effectively, if at all, the State concerned has implemented the Treaty.
One NGO commentator, present at the talks, has recently claimed (http://attmonitor.blogspot.co.uk/2012...) “the [Arms Trade Treaty] in its most attractive form might have had an impact on diverted transfers several years down the road”. If you accept the analysis above, that can only be true if the Treaty can be changed to something much stronger when already agreed and ratified. Professor Neil Cooper put it nicely “A strong [Arms Trade Treaty] may have the potential to grow and develop so that it establishes a new normative consensus capable of really influencing the practice of states…the wording of clauses on human rights and international humanitarian law may be of less significance than the powers the agreement provides to any implementation unit created to oversee a new [Arms Trade Treaty] regime”.
Here the draft Treaty is extremely problematic, because there is no enforcement mechanism, and because there is no provision for regular Conferences of State Parties. Indeed the first such Conference has to decide how regular the meetings are. If agreement cannot be reached about how often to meet, there may well not be a meeting for a very long time, as it would be in the interests of those wishing to keep the Treaty weak to refuse to agree to one. So the idea the Treaty could be made stronger over time seems highly unlikely to be realised unless the current draft text is changed quite radically.
And what is obviously the worst outcome is a really weak and ineffective Treaty which cannot be changed. Because that will be the end of the road as far as international agreement on the arms trade goes. So, to me at least, there seems little point in continuing to negotiate. Better to retire gracefully from the battlefield and fight another day (so to speak).
What other options are there? Well, for all its flaws, perhaps one would be to try and expand the EU Common Position into an international agreement between the willing. The more countries that come aboard, the better, and, perhaps, over time, with positive political change in countries such as China and Russia (well we may be waiting a while for that, but I hope it will happen), Cooper’s suggestion might become more realistic. Of course the EU Common Position is hardly perfect, and certainly many of the EU countries, like the UK, ought to take a far less permissive approach to arms exports than they currently do. So if I was the UK Government, I would be looking at the 90 countries (http://reachingcriticalwill.org/image...) who expressed the desire to bring the current Arms Trade Treaty text to the UN General Assembly First Committee to “finalize our work” to achieve “a strong and robust Treaty”, and seeing if they would be willing to sign something as “strong” as the EU Common Position. That would be better than what we have now (although not much), and does not make things worse.
Ultimately what is lacking is political will in sufficient countries, and political will can only be generated from within. This could happen. Thirty years ago, the UK was strongly against any international agreement to deal with bribery. Today, the UK is part of an international agreement with most of the significant exporting countries, and has, as a result, one of the strongest anti-bribery laws in the world. So change can happen. But it may take a long time.
There is one final lesson for me from this attempt to impose some control on the international arms trade. I agree with Dr Zuber of Global Action to Prevent War
(http://attmonitor.blogspot.co.uk/2012...) that “we should also rethink how we ‘sell’ the [Arms Trade Treaty] to the global public and avoid generating expectations that put pressure on a document that was never likely to fulfill those expectations. The [Arms Trade Treaty] in its most attractive form might have had an impact on diverted transfers several years down the road. It never was conceived as a disarmament obligation or as necessarily the ‘game changer’ for the UN system that many of its loudest proponents claimed”. I was saddened to see the constant claims during the negotiations that if the Arms Trade Treaty was in place, the Russians would not arm Assad. This was patently false. These silly claims simply discredit those who make them, and generate cynicism towards future efforts to promote change. It is far better to be honest and open about what is and is not achievable.
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