By Zoe Pelter

The United Nations Arms Trade Treaty negotiations in 2012 will not signify an end to arms trading but can, if properly prepared, stand as an effective measure against irresponsible arms trading decisions and help to level out a severely uneven landscape of arms export controls worldwide.

Over the past months, the world has watched as the governments of Libya, Bahrain and Yemen have used weapons including tear gas, sniper rifles and even fighter jets against anti-government protests by their own people. Serious questions have arisen about why, given the history of human rights violations by regimes such as Colonel Muammar Mohammed Al Gaddafi's, several European Union states have continuously exported arms to the Libyan Government since the UN arms embargo on Libya was lifted in 2004. Between 2004 and 2009, the EU granted export licenses worth a reported 1.18 billion dollars to the Libyan Government, and so it is safe to assume that much of the weaponry currently being used against Libyan civilians has been imported from overseas. But what risk assessments were made about the responsibility and capacity of Libyan forces as end users of the weapons being sent to them?

Although Britain revoked its export licenses to Libya as early as February 18, and the EU quickly followed suit by suspending all arms trade with Libya on February 23, the question stands: why were these licenses granted in the first place? As late as January of this year, human rights observers such as Human Rights Watch reported a lack of progress made on human rights promises in Libya, facts of which EU governments would have been aware. Indeed, British Defence Secretary Liam Fox's reference on February 28 to Colonel Gaddafi as 'a liability to his country and to his people' is an admission of an awareness that Gaddafi's regime was capable of using imported weapons in breach of international humanitarian law and human rights considerations.

The consequences of irresponsible arms export licensing reverberate much further than first glances portray and, again, Libya stands as a poignant example. The 2008 Final Report of the UN Panel of Experts on Sudan stated that arms originating from the stockpiles of Sudan, Chad and Libya had been used in attacks by the Justice and Equality Movement (JEM) forces in Sudan, a militia group included in the UN Security Council arms embargo on Sudan from 2005 onwards. In the case of JEM attacks on the city of Omdurman in 2008, chain-of ownership tracing by the Panel identified weapons manufactured in Spain, Belgium and Bulgaria, which had originally been legitimately shipped to Libya. Although many of the weapons were formerly exported to Libya in the early 1980s, the report stood as a clear sign of the danger of legitimately transferred arms leaking into the illicit market from Libya. Whilst one would hope that a responsible nation would take heed and carefully assess the risks of possible misuse of transferred arms, Belgium went on to license a further 31.65 million dollars of arms transfers to Libya in 2009.

These examples clearly highlight the need for a comprehensive and strong arms trade treaty that tackles inadequacies in risk assessments made before arms are traded, including insufficient information sourcing - or consideration of said information - to confirm end user responsibility. Although the arms trade is arguably one of the most heavily regulated in the world, the varying levels worldwide of control on exports creates a 'patchwork' international system that is easy for unprincipled arms dealers and states to find their way through. As the Libyan examples have shown, there is a clear humanitarian and human rights imperative towards an ATT, not only because of direct death and injury caused by an excessive proliferation of conventional arms but also because of factors such as the long-term social and economic costs of cyclical armed violence.

In 2009, after years of campaigning by state and non state platforms, the UN made a seminal shift to a negotiation mandate for an ATT in 2012. The Second Preparatory Committee Session towards an ATT, which took place February 28-March 4, saw the introduction of draft papers by Ambassador Roberto Garcia Moritán, Chair of the Open Ended Working Group towards an Arms Trade Treaty. These informal papers reflect the direction of discussions thus far and so, with this move towards outlining possible terms of the agreement, there is a need to look at what the ATT actually is and what it will mean.

Ambassador Moritán's most recent draft paper states that the treaty aims to 'establish the highest possible common international standards for the import, export and transfer of conventional arms' and to 'promote transparency and accountability' in these transfers. The draft also lists the aim of preventing and eradicating the illicit transfer, production or brokering of conventional arms and states that it aims to prevent transfers that facilitate armed conflict, human suffering and violations of human rights law, amongst other aims.

Although the paper is a vital step towards outlining a treaty objective, there are still several mistaken characterisations of the ATT that must be tackled. For example, although the idea for an ATT arose under the framework of the UN General Assembly disarmament arena, it should not be characterised as a disarmament treaty. It is intended to create the highest possible common standards of responsibility and security of arms transfers - not to stop the transfers themselves. Furthermore, the ATT will have no bearing on the sovereign decisions taken by states about who they may export to and what arms or components they will export. Instead, the ATT will aim that when states take those sovereign decisions, they will be based on substantive information to ensure that risks of misuse or divergence from the end user are properly assessed and exports withheld if necessary. The success of this plan to improve responsible export controls by states depends on several key elements of the ATT: its scope, parameters and ability to be implemented.

Thus far, most discussion on scope has focused on the seven categories of major conventional arms in the UN Register of Conventional Arms. In addition to these category groupings, which include heavy weaponry such as tanks and military aircraft, discussions have also suggested adding small arms and light weapons and, controversially, ammunition, to create a broader formulation for scope. The Chair's draft papers reflect an expansion of this list by including the components of the weapons under the treaty and also address the technology and equipment that can be used to develop or manufacture any of the listed weapons. ATT preparations must now move away from the UN Register to ensure that a relevant and current scope, including modern weaponry components such as software, is established.

The parameters are fundamental to the treaty, and their language must be precise if they are to be effective. Ambassador Moritán's draft, for example, suggests prohibiting states from authorising transfers if there is a 'substantial risk' of criteria being breached. The wording of the treaty will be essential and must therefore avoid vague terms such as 'substantial risk' which would allow for such varied interpretations of what constitutes a treaty violation that the treaty itself would be somewhat nullified. Potential discrepancies in possible phrasing must be highlighted before negotiations begin to avoid the creation of loopholes during talks.

The international community urgently needs to address how the treaty will be implemented. Discussions have thus far focused on a reporting mechanism by which states report back on the applicability of the ATT within their national jurisdiction. This will be vital since, for many states, implementing the ATT will be a process that will take years to complete. With international assistance, states with substandard export control systems will need to make both legislative and administrative changes, as new laws could still be sidestepped by illicit actors without a vigorous administrative system in place to stop corruption. The ATT should therefore be seen as a framework to work towards higher standards of arms export controls. The reporting mechanism will play a vital role in helping the UN to know how applicable the ATT is when implemented in vastly different national jurisdictions.

However, work remains to be done to clarify what actions will be taken against states, either signatory or non signatory, who breach the terms of the ATT. Preparatory groups must explore whether trade sanctions, political isolation or other means will be used to ensure that violations are not accepted. Furthermore, there must be exploration of what body will judge and apply these sanctions, thereby increasing the treaty's capacity to be implemented.

The final terms of the ATT will be based on the consensus of the UN member states, meaning that political will shall play a huge part when states finally sit down to talk. Aspects of the Chair's draft will be lost to placate the fears of certain states and it is therefore imperative that as much preparatory work as possible is done to create a broad and watertight treaty draft before negotiations begin. Only in this way can the negotiations result in an ATT that increases the responsibility, transparency and accountability of arms trade procedures between importing, exporting and transit states and one which can begin to tackle the illicit arms trade at its source. Although negotiations are due to take place in 2012, the time to achieve a robust and effective treaty is now.

(Zoë Pelter works for the International Security Programme at Chatham House and is Associate Coordinator of the Associate Parliamentary Group for Sudan.)


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