by Nathan A. Sears
Since the late 1990s,
global concern for the death, damage, and destruction wrought by the
uncontrolled proliferation of small arms and light weapons (SALW) has
appropriately led to another type of proliferation: the spread of multilateral
legally and non-legally binding agreements concerning SALW proliferation, both
licit and illicit. Nevertheless, the problems caused by SALW proliferation,
particularly armed violence, have continued despite growing international
attention. Today, many people see the Arms Trade Treaty (ATT) as a new beacon
of hope for mitigating the effects of SALW proliferation. This begs the
question of how exactly the ATT could strengthen existing multilateral
frameworks of SALW control.
Admittedly, the ATT is
not the end-all agreement for reigning in SALW violence. As has been pointed
out previously—although usually misleadingly—the ATT is not a
disarmament treaty. Nowhere in the operative paragraphs of the ATT would there
be a call to reduce the number of SALW already in global circulation. As a
result, we cannot expect the ATT to eliminate SALW violence, because it would
not eliminate SALW. That said, the potential for international regulation of
the ammunition trade—for the first time, I might add—could make superfluous
millions of illicitly held and irresponsibly used SALW, if their abusers are
denied access to bullets. Arguably, the ATT could save more lives as an
instrument of ammunition control than arms control.
The ATT is also not
conceived as an instrument to give international organizations the right to
supplant national laws on civilian ownership of firearms—a fact which some
civil society organizations, such as the National Rifle Association in the
United States, either fail to understand, or are happy to ignore in order to
stir up domestic political opposition to the ATT.[1]
Despite all of this,
there are many new areas that this treaty could cover, and old areas that it
could strengthen.
The single most important
part of the ATT will be the normative principles established through legally-binding
transfer criteria. These criteria will be the heart of a new norm of
international law: a norm for a responsible arms trade. From here onward, the
trade of SALW between states—or at least states parties—will be judged against
legally-binding standards. These normative principles are the centre of a
ferocious debate; for example, whether or not international human rights law
shall be included as a criterion for granting or denying arms transfers. But
whatever the substantive outcome of this debate, the ATT would clearly
establish a normative-legal dichotomy between responsible and irresponsible
arms trade. Despite some progress towards this end at the regional level, the
ATT represents the first global attempt to regulate the trade of the weapons of
war and violence from the pedestal of international morality, rather than from
the vantage points of private profit or national interest.
The ATT can also greatly strengthen the
precedent of transparency in SALW transfers established by the United Nations
Register of Conventional Arms (henceforth the Register). The Register has been
a weak transparency instrument with respect to SALW transfers, having long only
received information on states' transfers of larger conventional systems.
Furthermore, as a non-legally binding confidence-building measure, the Register
is neither mandatory, nor does it have means to sanction non-reporting states.
The ATT would be different. It would be a legally-binding treaty, with arms
transfer reporting being one of its core functions. Obligatory transparency in
SALW transfers would be a big step towards eliminating the illicit and irresponsible
SALW trade.
In terms of implementation, states parties
should be required to have national authorities apply ATT transfer criteria in
case-by-case risk assessments; adopt national legislation; create or refine
national agencies to monitor, keep records, and enforce laws on arms transfers;
strengthen transit and transshipment security; and prepare annual reports for
an Implementation Support Unit of information on all arms transfers, national
transfer control systems, law enforcement efforts, and other steps taken
towards implementation. This represents a serious step forward for
international SALW control, which has thus far been limited to the goal of
eliminating illicit transfers.
A final opportunity for the ATT is in the
realm of monitoring and verification. Civil society could play a critical role
in encouraging ATT implementation and compliance by adopting a number of
monitoring and verification functions. First, civil society should monitor
national risk assessments, verifying that transfer authorizations and denials
objectively comply with ATT transfer criteria. Second, civil society should
compare states parties' national reports with open source information on the
arms trade in order to verify their accuracy. Third, civil society should evaluate
the strengths and deficiencies of transfer control systems. While it would be
unrealistic to expect a civil society organization to assess all states'
implementation and compliance on an annual basis, scholars that study
monitoring and verification have concluded that there is no such thing as 100%
verification, but the fact that systems are imperfect does not mean that they
cannot effectively enhance the probability of detecting non-compliance, and
therefore also provide a strong deterrent and build confidence among states.
Thus, a possible approach to civil society monitoring and verification would be
a random selection of states on an annual basis, with in-depth assessments of
their implementation on the basis of the above criteria.
Existing multilateral agreements have succeeded in
framing the uncontrolled proliferation of SALW as a matter of global concern,
but there is still much to be done to effectively rout the problems caused by
both licit and illicit SALW proliferation. The ATT has the potential to be a
key mechanism for strengthening international control over SALW proliferation.
The most important opportunity that the ATT provides is to develop a strong
international norm for a responsible arms trade, based firmly on
normative-legal principles enshrined in the ATT's transfer criteria. The other
areas investigated here, such as civil society's potential monitoring and
verification functions, can also support the goal of eliminating illicit and
irresponsible SALW transfers, with potentially great consequences for reducing
armed violence and the numerous other challenges aggravated by the unregulated
flow of arms.
Nathan Sears is an independent scholar whose focus is small arms control. He is soon to have an article published in the Paterson Review of International Affairs published by the Norman Paterson School of International Affairs on this subject matter.
[1] On the
other hand, despite the obvious outcry from a number of governments that
international organizations do not have the right to tread on states' sovereignty over their internal affairs, this goal
would not be so wrong from moralistic and legalistic perspectives. The
government of Mexico, for example, would probably be happy to see higher US
standards of firearms regulation, since so many arms manufactured in the United
States seem to find their way into the hands of Mexican cartels.
