Last month the state parties to the Arms Trade Treaty (ATT) met in Geneva for the 12th Conference of the State Parties (CSP). The ATT has been negotiated to develop common and standard practices for regulating the international trade of conventional weapons. This treaty aims to prohibit the illicit export, import, transit, transshipment, and brokering of conventional weapons while contributing to the international peace & security, fostering transparency and cooperation in the international trade pertaining to the conventional weapons, and reducing the human suffering.
This treaty prohibits the transfer of tanks, artillery systems, missiles, warships, etc. It also includes ammunition as well as parts and components related to the aforementioned conventional arms. Article 06 of the treaty entails the provisions on the prohibition of the transfer of conventional arms in reference to the embargoes under UNSC resolutions, the treaty obligations of state parties for regulating illicit trafficking of conventional arms, and if information is available beforehand that the arms will be used for genocide or crimes against humanity, constituting violations of the 1949 Geneva Conventions. Article 07 deals with the cases in which there is no prohibition on transfer; however, it prescribes export risk assessment while assessing the impacts for peace & security and potential violations of international humanitarian and human rights law. This treaty prescribes assessment of an overriding risk and taking corresponding measures needed to address it.
At the prima facie, the provisions on the prohibitions and risk assessment for the exports are not well-defined or lack clarity in terms of establishing common practices for regulating the international trade of conventional arms. The divergences in views of member states on the aforementioned issues can be understood while examining their national positions. These divergences act as a stumbling block in ensuring the effective implementation of the treaty itself. For this, the focus will be placed on the EU, Mexico, Japan, and South Africa, while ensuring geographical representation from all corners of the world.
The EU has taken a firm position on the prohibitions enshrined in Article 06 of the ATT. The EU has repeatedly criticized Russian use of force in Ukraine while referring to Article 6(3) of this treaty prohibiting the transfer of conventional arms to countries that may commit genocide, crimes against humanity, and violations of the Geneva Conventions of 1949. However, the genocide in Gaza by Israel failed to trigger the implementation of the aforementioned clause for restricting arms trade to it. Although the EU pressed for the respect of obligations of International Humanitarian Law (IHL) and international human rights law by all the parties to the conflict.
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For the risk assessment, the EU has endorsed an approach that decides on a case-by-case basis. The EU has mentioned the eight-dimensional criterion entailed in its common position on the trade of conventional arms as the benchmark for evaluating the risk for exports, in tandem with the relevant provisions of the ATT. These include international obligations, internal security situation, security situation of allied countries, and prospects of the diversion, etc. Furthermore, the EU has supported the Working Group on the Effective Treaty Implementation (WGETI), while sharing its methodologies for the risk assessment with a focus on information-sharing mechanisms.
Mexico places a significant premium on the strict observance of obligations pertaining to IHL and international human rights law for restricting the trade of conventional arms. For risk assessment, Mexico stresses focusing on the organized crimes, and additionally, it proposes that risk assessment must be carried out throughout the entire cycle of shipment, rather than merely examining the export. It also raised concerns about the expanding defense industries, thus complicating the landscape for regulating the international trade of conventional arms.
Japan’s position reiterated that international legal obligations must be the central criterion for authorizing the trade of conventional arms. It also emphasized that risk assessment must be carried out while developing a criterion for comprehensively analyzing potential risks. The criterion must ensure the accountability as well as authorization of states in assessing the potential risks. Japan is of opinion that arms transfer in case of legitimate self-defense must not be restricted by any means.
While referencing the National Conventional Arms Control Committee (NCACC), South Africa opined that it has developed a licensing system under this statutory framework for ensuring explicit authorization in all the cases. To effectively assess the potential risks for exports, the country has established an inter-ministerial committee for comprehensively analyzing all the domains. South Africa stresses strengthening the national export control systems for effectively addressing the governance gaps.
A thorough discussion reflects that member states have emphasized international treaty obligations, crimes against humanity, and war crimes as central pillars for prohibiting the trade of conventional arms. Although, selective interpretation and enforcement of few variables over others have heavily impacted the effective implementation of the treaty. The working groups reflect slow progress among the member states on developing fine-tuned criteria for assessing the risks and contingencies for the prohibition.
The voluntary guide published by the Working Group on Effective Treaty Implementation (WGETI) comprehensively addresses the definitional, procedural, and institutional problems in reference to articles 06 and 07 of the ATT. In reference to the article 06 entailing prohibitions, a consensus must be established on defining what constitutes war crimes, crimes against humanity, and gender-based violence, while explicitly referring to the relevant international legal instruments. Similarly, for risk assessment, member states must discuss what kind of information will be acquired through which procedures by different institutions in their national control systems. The way forward lies in constructive engagement while exploring methodologies for aforementioned.
