Legal Basis for an Arms Trade Treaty, the Global Principles and the Foundation in International Law

The basic premise of an Arms Trade Treaty (ATT) is to ensure that transfers of conventional arms and ammunitions occur within a global legal framework setting out the range of international legal obligations states have that apply to transfers.  Such a treaty should be comprehensive in its scope and effective in making the legal trade in conventional arms and ammunition more responsible, ensuring that arms and military equipment are in the hands of responsible end-users and used within their legal limitations.

Creating such a treaty requires a balancing of the rights of States to sell, acquire and possess weapons with their responsibilities and legal obligations that exist under international law. For an ATT to be effective, it must be consistent with States’ rights to self-defense under Article 51 of the UN Charter and ensure that states are able to meet their legitimate and legal military, policing and security needs.

However, given the enormous scope for all conventional weapons to be used illegally or contrary to international norms and standards, an ATT must also ensure that prior to a transfer of conventional arms, whether a state is importing or exporting or transferring arms, that state must consider the full range of their legal obligations under international law that are relevant to arms transfers.

These legal obligations includes ensuring respect for the UN Charter, international human rights law, international humanitarian law and other areas of international law that has application to conventional arms transfers.  The right to self-defense of a state does not have priority over a state’s international obligations. As such an ATT provides the international community with an important opportunity to frame and consolidate the balancing of meeting self-defense needs and international obligations to ensure that responsible decisions are made, that account for legitimate state security needs and results in decisions that prioritize human security, human rights and human dignity.

Conceptual Framework of the Arms Trade Treaty

The conceptual framework of an ATT is straightforward. Given the nature of the conventional arms trade and the diverse body of international law that States who participate in that trade must consider, an ATT will essentially set out a regulatory framework.  States who import arms, states who export arms, or act as transfer points for the movement of those arms need to strictly regulate the movement of weapons and equipment. 

This regulation comes through a system of licensing of transfers, whether it is an import, export or other form of transfer.   To a large extent this exists already. A large number of states have legislation requiring export and import licenses. But what an ATT will do is ensure that prior to such a licensing of transfers, all states who are party to an ATT assess whether that transfer is in compliance with commonly defined standards that reflect international obligations.  

NGOs who are advocating for an ATT have set out 6 Global Principles which reflect the best general rules for effective control of international transfers of conventional arms and ammunition.  Some key aspects of these 6 principles are set out below.

Global Principles for an International Arms Trade Treaty

The first principle reflects the responsibility on states to authorise all transfers of conventional arms in accordance with national laws and procedures that reflect, as a minimum, states’ obligations under international law. Licensing decisions, export decisions, import decisions remain the sovereign right of states executed through national legislation and procedures but within the structure of an ATT more consistent, more standardized and more universal decisions of the transfers of conventional arms that respect international law are made.

An ATT should then clearly set out the criteria under international law, which a state should consider in its assessment of a transfer.  These criteria can be divided into three categories. First there are those criteria under which a state is expressly prohibited to transfer conventional arms as set out in existing international law.  This is the 2nd Global Principle.

This would include United Nations Security Council embargoes with which all States are obligated to comply. In addition to arms embargoes, the UN Charter contains other well-established and well-accepted principles. These principles have application to transfers of conventional arms, for example the prohibition against the use or threat of force and the prohibition against intervening in the domestic affairs of other states, enshrined in Articles 2(4) and 2(7) of the UN Charter. These are key provisions in the UN’s mandate to maintain international peace and security and form cornerstones of the UN Charter.

A transfer is also prohibited in any circumstance where a state is already party of a treaty that contains prohibitions on arms transfers, such as the 1997 Landmines Convention, which India is not yet a party to.  But for example, an exporter state who is a party to Landmines convention cannot license a transfer of landmines. An importer state who is a party to this Convention cannot license an import of landmines.  An ATT would reinforce these norms.

Transfer of Arms for Violations of Human Rights must beProhibited

The second category of criteria for transfers is extremely important because it looks at the potential use of a transfer of weapons. And here, clearly one of the fundamental normative aims of an ATT must be to safeguard human rights.   So where there is a substantial risk that a transfer of arms will be used for serious violations of human rights or international humanitarian law that transfer must be prohibited.  This is the 3rd Global Principle.

Every UN member state is a party to one or more of the universal human rights treaties and through their participation in these human rights treaties UN member states have accepted the centrality of human rights and their application to a range of state activities, including the transfer of conventional arms and ammunition.

All states who are party to human rights treaties have obligations to promote those rights, to secure those rights for all and to prevent violations of the particular rights under the human rights treaties they are a party to. These human rights treaty standards provide the benchmarks for assessing a potential transfer of conventional arms against a human rights criterion. There is no hierarchy of international human rights: the use of conventional arms could result in the perpetration of serious violations of a spectrum of human rights standards including civil, cultural, economic, political and social rights, and rights relating to women, children, minority and indigenous groups.

Respect for human rights will not be achieved by a state if it provides or authorizes arms transfers to a person or an entity with the knowledge that the arms will be used or are likely to be used for the serious violation of human rights. There is already broad consensus on this point. Of the 100 states who submitted their initial views on an ATT to the UN Secretary in 2007, 62 States explicitly stated that an ATT must include human rights law. India, in its submission states, that it fully supports measures that contribute to respect for human rights, but did not explicitly state support for an ATT as a viable and effective tool to ensuring respect for human rights.

Avoid Possible Negative Consequences of an Arms Transfer

The 4th Global Principle addresses a range of other factors a State should turn its mind to prior to authorizing an international transfer of conventional arms. These factors identify a range of possible negative consequences of a transfer that might violate a state’s international obligations based on the possibly use or end-user.  Within an ATT there should be a positive duty on states to address these issues and establishes a presumption against authorizing transfers where these consequences are deemed likely.

These criteria have emerged over the last fifteen years in the numerous regional, multilateral and international instruments.  Their prevalence in these documents and their acceptance by a wide range of states consolidates the notion that States have a responsibility to identify and assess potential negative impacts based on the use of conventional arms or based on the potential end user.

These norms would include an assessment of whether the transfer would be:

A. used for or to facilitate terrorist attacks;
B. be used for or to facilitate the commission of violent or organized crime;
C. adversely affect regional security or stability;
D. adversely affect sustainable development;
E. Or involve corrupt practices.

These norms are rooted in international law obligations. For example, with respect to terrorism, there are 13 international conventions relating to various terrorist activities – such as the Convention for the suppression of Terrorist Bombings, or the most recent one, the Nuclear Terrorism Convention. 

None of these treaties have specific obligations on the transfer of conventional arms but they do impose a number of obligations on states to address various forms of terrorist attack. Since 2001 and the passing of Security Council Resolution 1373 which is binding on all states, in addition to creating the Counter Terrorism Committee, all States are obliged to “eliminate the supply of weapons to terrorists”.  

Ensure Transfer of Arms Transfers

The 5th Global Principle reaffirms the need for transparency in the transfer of armaments and that an ATT should require states to submit comprehensive national annual reports on all their international arms and ammunition transfers to an international registry.  Finally the 6th Global Principle is for an ATT to be effective there needs to be common standards for specific mechanisms to control other activities related to transfers such as brokering activities, the use of end use certificates. These operative mechanisms must be reflected within their own laws to ensure that the global principles can be fully implemented.

To summarize, there is an established and largely uncontroversial body of international law which is directly relevant to the assessment of applications for transfer authorizations of conventional weapons.  The range of conditions or criteria for an ATT have been clearly identified by States already in a number of documents and existing guidelines and agreements and also expressed in their submissions with initial views on an ATT.

It is not, however, a body of law that has been conveniently codified in treaty form: it exists in numerous documents and often states do not consider the full scope of their obligations when making decisions on arms transfers. Distilling these into a single instrument will assist States in taking necessary measures to ensure that their transfers are in line with their existing obligations in international law. An ATT will specify and codify the application of existing treaty law, offer criteria for risk assessment for states to follow, and perhaps most importantly it will focus on the potential impact of arms transfers by its end-use or the end-user.

India’s Submission

This paper will briefly address points that have been made by India and other states on their views of an ATT.

The first is that India states that the absence of common internationally agreed standards on the trade in conventional arms is not the sole reason that there is an irresponsible or illicit trade in arms.  Clearly, it is not the sole reason. There are a range of other reasons including: the lack of a strong UN Programme of Action on Small Arms and Light Weapons (PoA), the lack of political will by states to fully implement their international obligations, the priorisation of defense industries and global markets over human security, the lack of global leadership from those countries who are key or emerging exporters of conventional arms and who can play a decisive and key leadership role in determining how the trade in conventional arms  – these all play a role in the irresponsible trade in conventional arms. 

An ATT is not the only solution, but it is a part of the solution, a significant part of the solution, one which states should embrace, should actively engage in, promote and work vigorously towards achieving as it will be a significant step forward to ensuring a more responsible trade.

Second, India suggests that the main problem is with small arms and light weapons and that it is the illicit trade that is the problem that needs to be addressed. There are two things wrong with this perception. First while small arms and light weapons are indeed an enormous problem and account for a significant percentage of the misuse and abuses of arms, some major types of conventional weapons are also used to commit serious violations of international law, including international human rights and international humanitarian law. Some examples are military vehicles/trucks, military utility aircraft, non-attack military helicopters, munitions (including explosives and ammunition).  

To suggest that the ATT should have the limited focus on SALW is to ignore the full reality of the problem and the full range of weapons that are misused.  In order to be an effective global instrument, the ATT will need to comprise a comprehensive system to control the cross-border movement of all conventional arms and associated equipment. India also states that the illicit trade needs to be addressed.  What is the ‘illicit trade’ is never defined though by India.

It is also not defined in the UN PoA either. India’s submission fails to make it clear how states are to address the illicit trade in conventional arms without first defining what is legal and in line with states’ existing obligations under international law. An ATT is a means in which to focus on the legal trade and as a result, enabling the illicit trade to be effectively addressed.

The ATT is a unique opportunity for countries such as India to play an important global role. Given its experience in dealing with a number of pressing global concerns including the risk of terrorist attacks, regional insecurity, the risks posed by the diversion of arms to irresponsible end users, and the need to address human security India could fruitfully engage with the substantive content of an ATT. India, as the world’s largest democracy, can play and should play a pivotal role in moving the global community forward to concluding an ATT.

This paper was presented at conference on “India, Sustainable Development and Arms Trade Treaty”  organized by Control Arms Foundation of India  on 3rd and 4th of July, 2008, in New Delhi.