Thursday, July 19, 2012

How the Arms Trade Treaty can strengthen international control over small arms and light weapons proliferation

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.