The “Final” Conference on the Arms Trade Treaty

Coauthored with Andrew Reddie, research associate in the International Institutions and Global Governance program.

The Final Conference on the Arms Trade Treaty (ATT) convened by the United Nations General Assembly (UNGA) is being presented as a last-ditch attempt to negotiate standards for the international trade in conventional arms. After a twelve-year process involving panels of experts, regional dialogues, and a lengthy planning program, it is showtime for the international community.  Given the well-documented hurdles to achieving consensus among 193 UN member states on international issues, however, the treaty is unlikely to be the “final”  word on the issue.

The previous round of negotiations on the ATT concluded in failure just eight months ago, in July 2012, in part because the Obama administration did not want to hand Republicans a red meat issue in the run-up to the November elections. This time around the White House seems to be on board, buoying prospects for the treaty’s signature. For the first time, the world is on the verge of new rules to govern trafficking in conventional weaponry, including small arms and light weapons. On the surface, governments  have accepted the compelling humanitarian need to curb the trade in instruments of violence too often exploited by war criminals, despots, and human rights abusers

All is not rosy, however. As often occurs in complex multilateral negotiations, the language in the draft ATT has been diluted to reflect the discrete interests of major players. The United States, for example, has previously rejected proposals to regulate the trade in ammunition—of which the United States has half of the $4.3 billion annual trade. China, too, has added reservations to allow the “gifting” of weapons to favored strategic partners, including in sub-Saharan Africa. Russia, similarly, has requested an addendum to allow it to loan weapons to its own allies.  Clearly, these initiatives violate the spirit of the proposed agreement.

There remains broad disagreement, moreover, concerning the scope of any treaty—and considerable hypocrisy among the great powers. For instance, while the Permanent Five members (P5) of the UN Security Council (China, Russia, United States, Great Britain, and France) signed a statement supporting “the highest common standards” for regulating the international trade in conventional weapons, all except Great Britain reject a joint statement of 120 countries (drafted by Mexico and backed by Germany) calling for a “strong” treaty.

Given the reluctance of the P5 (excepting perhaps the UK) to create binding and international mechanisms of enforcement, the impact of the ATT will depend on the vigor of its implementation by domestic  authorities. The draft treaty [PDF]  proposes that each state party rely on its own national control system, with limited oversight from a modest international secretariat. In conjunction with Conference President Peter Woolcott’s decision to strike language broadening the treaty’s application to weapons not explicitly specified in the convention, states will enjoy broad license to define their own efforts to regulate the arms trade. In the absence of a more powerful secretariat empowered to define concepts like “war criminals,” “terrorists,” “illicit markets,” and the like, the long-anticipated ATT may make little difference in the real world.

Beyond a weak secretariat, the effective implementation of the ATT will face three additional obstacles. The first relates to capacity. Poor states like Mali have already made clear that though they are likely to ratify the treaty, they will require financial and technical assistance to implement its complex provisions.  It remains unclear that the international donor community will offer such aid, particularly in an era of fiscal austerity.

The second obstacle is less about capacity than about will—specifically, the lack of commitment among some “outlier” states to conform to the treaty, regardless of whether they ratify it. The draft ATT is different from other arms control treaties, such as those concerning the use of biological, chemical, and nuclear weapons (as well as initiatives to ban landmines and cluster bombs), in that it would regulate a market in legitimate arms, rather than a prohibition against those broadly considered normatively out of bounds. For the ATT to be effective, states must be willing to distinguish between licit and illicit forms of trade in the same class of weapons. Unfortunately, outlier states like Iran, North Korea, and others have proven all to willing to disguise the final destination and purposes of trafficked weapons, including by using shell companies and false end-user certificates. Even if the ATT goes into force, non-ratifying (and even some ratifying) states may occupy a position similar to that of tax havens, continuing to facilitate the illicit and increasingly opaque transfer of weapons. Some fear that an imperfect treaty might actually exacerbate the illicit trade in weapons—and that no treaty might be better a fatally flawed ATT.

The third challenge is legislative. Signing a treaty is one thing, ratifying it quite another. This is most obvious, and problematic, in the case of the United States, which has signed numerous multilateral treaties, including the UN Convention on the Law of the Sea (UNCLOS), the Convention on Biological Diversity (CBD), and the Convention on the Elimination of Discrimination Against Women (CEDAW), only to see them languish in the Senate. Prospects for ratification of the ATT have been complicated by conservative resistance, backed by the influential lobbying activities of the National Rifle Association (NRA). Senator James Inhofe (R-OK) has introduced an amendment to a U.S. budget bill that would prevent the United States from becoming party to the ATT, on the grounds that the treaty would impinge upon citizens’ Second Amendment rights.

This claim is entirely without merit, since the ATT regulates international trade in weapons, does not interfere with domestic commerce, and places implementation entirely in the hands of the state, rather than any international body. As Senator Patrick Leahy (D-VT) pointed out in his own amendment, the United States cannot be party to treaties that violate the U.S. Constitution in any case (making Senator Inhofe’s amendment moot). Nevertheless, it is quite possible, even likely, that opponents will be able to generate opposition from more than one-third of the Senate to block ratification.

As of today, a final draft treaty has been produced and released by Conference President Peter Woolcott with no further scope for amendment. It remains unclear whether states will, in fact, sign onto the treaty . The ATT negotiations reflect the obstacles to achieving grand bargains in the twenty-first century, particularly ones requiring difficult negotiations at both the multilateral and domestic levels. If nothing else, we can  be confident that this “final”  treaty will not be the last word.