By Pablo Arrocha Olabuenaga – Just Security (*)
It was not surprising or unexpected when President Donald Trump announced that the United States would “withdraw” from the Arms Trade Treaty (ATT) in an April 26 address to the National Rifle Association (NRA). To a roaring crowd, he declared:
“Under my administration, we will never surrender American sovereignty to anyone. We will never allow foreign bureaucrats to trample on your second amendment freedom. I’m officially announcing today that the United States will be revoking the effect of America’s signature from this badly misguided treaty.”
If anything, Trump’s announcement is congruent with his administration’s foreign policy approach, which has consistently attacked multilateralism and challenged international law. Examples of this pattern of conduct are the withdrawal from the Paris Agreement in June 2017; the withdrawal from UNESCOin October 2017; pulling out from the negotiations on the Global Compact on Migration in December 2017; the unilateral military attacks, together with France and the United Kingdom, against Syria in violation of the UN Charter in April 2018; pulling out of the U.N.’s Human Rights Council in June 2018; the withdrawal of both the Optional Protocol of the 1961 Vienna Convention of Diplomatic Relations and of the 1955 Treaty of Amity with Iran in October 2018; the withdrawal in February from the Intermediate-range Nuclear Forces (INF) treaty with Russia; or the recent decision to revoke the entry visa to the U.S. of Fatou Bensouda, the prosecutor of the International Criminal Court. In the case of U.S. withdrawal from the ATT, in addition to the political considerations associated with it, the decision is based on a clear misconception of what the treaty is and what it does. To better understand the gravity of this misguided decision, it is important to take a look at the history behind the treaty and at its content, especially its object and purpose.
The U.N. process towards an ATT
Before the ATT entered into force on Dec. 24, 2014, there were more international laws in the world regulating the trade of bananas than the arms trade. For many years, civil society had recognized this deficiency and called for global action. In 1997, for example, a group of 19 eminent persons and institutions that had received the Nobel Prize for Peace — including Dr. Oscar Arias Sánchez, former President of Costa Rica; Desmond Tutu; José Ramos Horta and Amnesty International — launched and International Code of Conduct on Arms Transfers. This initiative made its way to the U.N. a few years later via the Permanent Mission of Costa Rica in New York.
The lack of an international global framework for the trade in arms was profoundly worrisome given the immense volume of the global trade in conventional arms and its potential effect in the disruption of peace and sustainable development. Former U.N. Secretary-General Ban Ki-moon had indicated that:
“The world is overarmed and peace is underfunded. Military spending is on the rise. Today, it is well above $1 trillion a year. Let us look at Africa alone. Between 1990 and 2005, 23 African countries lost an estimated $284 billion as a result of armed conflicts, fueled by transfers of ammunition and arms — 95 per cent of which came from outside Africa. And globally, 60 years of United Nations peacekeeping operations have cost less than six weeks of current military spending.”
After years of informal discussions, and with mounting pressure from civil society, the U.N. initiated a process to negotiate the first global international agreement to regulate the licit trade in arms, finally putting an end to this important gap in international law. This process was long and complicated, as are most multilateral processes at the U.N. It included the establishment of a Group of Governmental Experts (GGE) in 2008, whose mandate was to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms. This was followed by the establishment, in 2009, of an open-ended working group of the General Assembly to consider the report of the GGE and the recommendation of an international instrument on the matter. After this, the decision was made to establish a preparatory committee, which had two sessions in 2010 and 2011, respectively, followed by the U.N. Conference on the Arms Trade Treaty, held in 2012. Then, the Final U.N. Conference on the Arms Trade Treaty was convened in 2013, since no agreement could be reached the year before.
The final treaty text had to be adopted by consensus, according to the Rules of Procedure of the Conference agreed to by the preparatory committee. During the first Conference, both Russia and the U.S. indicated that they were not ready to adopt the draft text put forward by Argentinian President Roberto García Moritán. As a consequence, the General Assembly convened the Final Conference, where general agreement, including by Russia and the U.S., grew around the draft text prepared by Australian President Peter Woolcott. However, on the last day of the Final U.N. Conference (March 28, 2013), Syria, Iran and the Democratic People’s Republic of Korea (DPRK), blocked the adoption of the treaty by consensus. Therefore, on April 1, 2013, a draft resolution was submitted to the General Assembly for the adoption of the treaty. The resolution was co-sponsored by 64 U.N. member States, including the U.S. The ATT was consequently adopted by the U.N. General Assembly on April 2, 2013, with 154 votes in favor and only 3 against (DPRK, Iran and Syria), and with 23 abstentions. To this date, the treaty has 130 signatories and 101 States Parties.
I had the opportunity to serve in the Mexican delegation throughout the negotiation process, starting with the negotiation and adoption of General Assembly resolution 64/48 in 2009, and through the adoption of the treaty in 2013. I can attest to the hard work and effort that it took both Amb. García Moritán and Amb. Woolcott, as well as all delegations, to come together on an issue that has an inherent trend to polarization and that touches upon very sensitive issues for States including concerns about their own security and stability. From the Mexican perspective, this is a particularly important legal instrument given the great challenges and threats posed by the illicit trade of arms that flows mostly from the U.S. border into Mexico, fueling organized crime. To exemplify this, the negotiations coincided with the exposure of the highly controversial U.S. Fast and Furious operation, where the Phoenix Field Division of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), allowed illegal gun sales in an attempt to track the sellers and buyers, who were believed to be connected to Mexican drug cartels.
As Roberto Dondisch, chief negotiator of the Mexican delegation, has written elsewhere (‘El Tratado de Comercio de Armas, un éxito de la diplomacia mexicana’ in México y el Multilateralismo del Siglo XXI), the U.S. and Mexico always kept a very close relationship throughout the negotiations. Despite having substantial differences in our approaches to certain aspects of the treaty, we always maintained the utmost respect in our exchanges and we worked hand in hand towards bridging those differences in favor of achieving a meaningful legal instrument. The fact that both teams — led by Dr. Dondisch on the Mexican side, and by Amb. Thomas Countryman, who left the State Department in January 2017, on the U.S. side — overcame what initially were perceived as irreconcilable positions and ended up cosponsoring the draft resolution through which the ATT was adopted by the General Assembly, proves that where there is a will, there is a way.
The ATT at a glance
What does the ATT do? As indicated by its name, the Arms Trade Treaty regulates the international licit trade of arms. Its object and purpose, which is clearly spelled out in Article 1, is the following:
“The object of this Treaty is to:
Establish the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms;
Prevent and eradicate the illicit trade in conventional arms and prevent their diversion;
for the purpose of:
Contributing to international and regional peace, security and stability;
Reducing human suffering;
Promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms, thereby building confidence among States Parties.”
Other relevant aspects of the treaty to be highlighted are: i) its scope includes small arms and light weapons; ii) State Parties have the obligation to establish and maintain a national control system to regulate the export of ammunition/munitions; iii) the treaty establishes a system to conduct an assessment, including the consideration of possible mitigation measures, before authorizing an export of weapons; iv) it includes measures to prevent the diversion of arms, and v) it includes a yearly reporting mechanism of authorized or actual exports and imports of conventional arms.
In a nutshell, the ATT sets out global standards to conduct legal and rightful activities in a transparent manner. This, in turn, helps to identify where and how arms are diverted into the illicit market and raises the bar regarding accountability for irresponsible transfers of arms.
What does the ATT not do? It is not a disarmament treaty nor a treaty for the reduction of arsenals; it does not prohibit the international trade in arms, and; it does not regulate, in any way, internal transactions, in particular the acquisition of arms by civilians. Contrary to what Trump has declared, the treaty explicitly reaffirms “the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system.” In other words, the ATT is absolutely silent on controls, regulations, limitations, rights or obligations regarding the domestic sale of arms. Therefore, claiming that the ATT breaches sovereign rights of States, specifically the second amendment to the U.S. Constitution, is not a matter of misinterpretation: It is simply not true.
It is also very important to understand what is the extent of the legal obligations arising from signing the ATT. A signatory to an international treaty is not a State Party. According to Article 18 of the Vienna Convention on the Law of Treaties(VCLT) of 1969, a State that has signed a treaty has the obligation to refrain from acts which would defeat the object and purpose of said treaty. No more and no less. The signature does not unfold the totality of the rights and obligations established in the treaty. This would only happen if the State became a party, having expressed its consent to be bound, namely through ratification, acceptance, approval or accession.
It is also worth noting that there is no such thing as a revocation of signature of treaties in the VCLT. However, the obligation not to defeat the object and purpose of a treaty arising from its signature lasts until the State has made its intention clear not to become a party to the treaty, which presumably will be the case of the ATT (as of the time of writing of this essay, no notification in this regard has been deposited by the U.S. before the U.N. Treaty Section, which serves as depositary of the Treaty).
A historic achievement of multilateralism
The adoption of the ATT was widely praised, and rightly so. Following the adoption of the ATT, the U.N. issued a press release stating:
“To a burst of sustained applause, the General Assembly today voted overwhelmingly in favour of a “historic”, first-ever treaty to regulate the astonishing number of conventional weapons traded each year, making it more difficult for them to be diverted into the hands of those intent on sowing the seeds of war and conflict.”
The President of the Final UN Conference, Amb. Woolcott, wrote:
“The UN had not seen success in negotiating a multilateral arms control agreement since the 1990s. The adoption of the Treaty by an overwhelming majority of States in the UN General Assembly is a major achievement for the United Nations and for multilateralism. When the Treaty’s regular Conference of States Parties takes hold, it will underscore that the discussion and scrutiny of the international arms trade have firmly found a place on the multilateral agenda.” (Introduction to the book Weapons and international law: The Arms Trade Treaty, 2015)
Finally, In the preface to the book Le Traite sur le Commerce des Armes by Loïc Simonet, Dr. Óscar Arias wrote:
“…I am both proud and deeply relieved that as I write these words in October 2014, we have defied the odds. We have made history. The Arms Trade Treaty was adopted on 2nd April 2013 by a large majority of the UN General Assembly. (…) As we look back on our history of violence, we took a powerful step towards peace. For the first time in history, a legally binding instrument established a common regulatory framework for international transfers of conventional arms, and therefore set up universal legal standards for the arms trade, on one of the few areas of global commerce which had escaped any control until now. The treaty has the power to reduce human suffering and contribute to international peace, security and stability. To be honest, it is an achievement I never expected to witness. I never thought that an idea that first took shape so many years ago would become a part of international law in my lifetime.”
Given the great difficulties it encompassed as well as the great real impact it can have on the ground in reducing human suffering, the adoption of the ATT was indeed a historical achievement of the international community. It also reaffirmed the relevance of the United Nations and multilateral diplomacy, in particular in an area as controversial as the regulation of conventional arms, and in which no progress had been registered for so many years.
According to Amnesty International, more than 500 people die every day from gun violence, 44 percent of all killings globally involve gun violence, and there were over 1 million firearm-related deaths globally between 2012 and 2016. In contrast, military expenditure is on the rise. According to the Stockholm International Peace Research Institute (SIPRI), the U.S. continues to be the top global exporter of arms and the 13th global importer (with Saudi Arabia holding the first position), with a total military expenditure in 2018 of $6.5 billion. This is more than 120 times the U.N. budget for the period 2018-2019.
It is for these reasons that the recent announcement to “revoke” the U.S. signature of the ATT is so troubling. The world is in dire need of an effective implementation of the only global legally binding instrument that regulates the international trade in arms. And for that to happen, it is key to have on board the largest exporter in the world, if not as a State Party, at least as a responsible actor committed not to undermine the object and purpose of the treaty, which has at its core international peace and security and, most importantly, the value of the human person. Unfortunately, this political decision, based on false premises, and coupled with a consistent pattern of attacks on multilateral diplomacy, seems anything but promising. May 8, 2019
* Just Security is based at the Reiss Center on Law and Security at New York University School of Law. Guest author Pablo Arrocha Olabuenaga is Legal Adviser of the Permanent Mission of Mexico to the United Nations.