The Arms Trade Treaty: the role of legal interpretation and State policy in giving effect to the human rights-based provisions

Between 23rd and 25th February, Trinidad and Tobago hosted the initial preparatory meeting ahead of the first Conference of States Parties to the Arms Trade Treaty which will be held in Mexico later in 2015. Following 20 years of campaigns and negotiations and the failure to reach an agreement at the Final UN Diplomatic Conference, the Arms Trade Treaty  (ATT) was adopted by an overwhelming majority at the UN General Assembly on 2nd April 2013. It entered into force on 24th December 2014, 90 days after ratification by the 50th State. To date, the Treaty has been signed by 130 States and ratified by 63.

As the first treaty to regulate the trading in conventional weapons, the Arms Trade Treaty was not only ground-breaking but long overdue. The most recent impetus towards an internationally binding instrument started to gain traction following the gulf war when it was discovered that Iraq was “awash with arms supplied by all five Permanent Members of the United Nations Security Council”. In December 1991, the UN General Assembly called for increased openness and transparency in the field. Since then, numerous reports by UN bodies, NGOs and IGOs have documented the extent and consequences of weapon proliferation and stockpiling. For instance, a 1999 International Committee of the Red Cross (ICRC) study on arms availability and civilians in armed conflict highlighted the fact that “a vast number of actors have increasingly easy access to lethal weaponry”; the UNDP has documented over 8 million illicit weapons in West Africa alone, and has noted that the weaponisation of societies has contributed to the emergence of child soldiers and non-state armed fighters. It is against this background that the Arms Trade Treaty was negotiated and finally adopted.

Following its adoption, UN Secretary-General Ban Ki-moon noted that the Treaty “will be a powerful new tool in our efforts to prevent grave human rights abuses or violations of international humanitarian law”. In reality, however, it could be a powerful tool, depending on how States choose to interpret and apply its provisions. Undoubtedly, the purpose of the Treaty to contribute not only to the maintenance of international peace and security but also to the furtherance of human rights and humanitarian law bears testament to the remarkable role played by organisations, including Amnesty International, the ICRC and Oxfam in spearheading and campaigning for its introduction. Unsurprisingly, however, the attempt to regulate the multi-billion pound arms industry was a struggle and the underlying principles of the Treaty can only be upheld through continued political commitment.

The Treaty operates a three-tier system to regulate arms export. Primarily, Article 6 contains an absolute prohibition on the authorisation of the transfer of arms: (1) in violation of  States’ obligations stemming from  UN Security Council measures adopted under Chapter VII of the UN Charter, “in particular arms embargoes”; (2) in violation of obligations under international agreements to which States are Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms; (3) where a State “has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party”.

While all States are bound, under the UN Charter, to implement UN Security Council Chapter VII measures, therefore, the stipulation that arms cannot be transferred in violation of arms embargoes is not particularly remarkable, the provisions relating to genocide, war crimes and crimes against humanity represent “potentially one of the most important provisions in the ATT”. However, regrettably, the requirement that a State explicitly “has knowledge” that arms will be used in a particular manner arguably leaves a fair degree of wiggle room in the authorisation assessment.

The second tier of protection is established under Article 7, sub-Articles 1 – 3 which provide that, in considering whether to authorise an export that is not expressly prohibited under Article 6, a State is required to assess whether the export or transfer: (a) would contribute to or undermine peace and security; or (b) could be used to commit or facilitate: (i) a serious violation of international humanitarian law; (ii) a serious violation of international human rights law; (iii) a terrorism offence (under international conventions or protocols to which the exporting State is a Party); or (iv) an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

Where the risks cannot be mitigated and if the exporting State determines that there is an “overriding risk” of the consequences actually occurring, Article 7(3) provides that the State “shall not authorize the export”. The substantial interpretative latitude allowed by these provisions may ultimately significantly affect its effectiveness. Primarily, a State will need to interpret what would qualify as: “undermining the peace”; violations of IHL (that are not already covered under Article 6); serious violations of international human rights law (on which the Geneva Academy of International Humanitarian Law and Human Rights has produced an excellent, detailed legal analysis); and transnational organized crime. Moreover, under Article 7(2) States will need to make a value judgement on whether the risks can be mitigated and whether or not there is an “overriding risk”, a term that is also subject to various, conflicting, interpretations.

This complexity is further compounded by the tensions stemming from economic considerations, particularly in major exporting States. For instance, following an extensive review of the UK’s policies on arms export control, the UK Parliamentary Committees on Arms Export Control (CAEC) observed that

“whilst the promotion of arms exports and the upholding of human rights are both legitimate Government policies, the Government would do well to acknowledge that there is an inherent conflict between strongly promoting arms exports to authoritarian regimes whilst strongly criticising their lack of human rights at the same time rather than claiming, as the Government continues to do, that these two policies “are mutually reinforcing”.

A third tier of protection is introduced in Article 7(4) which provides that, in making their assessment under Article 7(3), State Parties are “to take into account the risk of […] (arms) being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women”. While it was hoped that the gender-based violence criteria would be placed at par with violations of human rights and international law and States were called upon to prohibit the transfer of arms where there was a substantial risk that they would be use used to perpetrate or facilitate gender-based violence,  the Treaty provision is notably less forceful;  unlike Article 7(1) which, read together with Article 7(3), is proscriptive in nature, Article 7(4) only requires that States take the risks of serious gender-based violence into account. Moreover, the provision is, again, subject to significant interpretation.

However, even if it is not as robust as it could have been, the introduction of the provision is significant. While UN Security Council Resolution 1325(2000) acknowledged the gendered effects of conflicts fifteen years ago, this is the first international treaty that “explicitly links gender-based violence with [the] international arms trade” and, notably, it also applies to non-conflict-related violence.   It comes following various studies that have highlighted the relationship between guns, expressions of masculinity, power and the resultant normalisation of violence against women in conflict, non-conflict and post-conflict situations.   Studies have shown that arms facilitate the commission of gender-based violence, for instance, because “it would not be possible to rape women, in front of their communities and families, on such a large scale […] if there weren’t such a wide availability of small arms”.  Moreover, it has been noted that while the number of men who have died from gun violence significantly outweighs the number of women killed, the fact that a smaller proportion of women own guns means that they are “disproportionately the victims of gun violence, including non-lethal violence”. Of course this does not imply that women are affected in a uniform manner, or that they universally lack agency (for an interesting discussion on the complex, multi-faceted relationship between women, armed violence and the small arms trade see  The Small Arms Survey 2014 Yearbook that focuses on Women and Guns). However, it is significant that by the time that the Arms Trade Treaty was being finalised, the importance of representing the gendered implications of the arms trade, not just as a matter of policy but also as a legal obligation, was considered essential. Indeed, the link between the arms trade and gender based-violence was not only recognised by NGOs and leading academics, but by various UN bodies including the Security Council, the Committee on the Elimination of Discrimination against Women  and the Commission on the Status of Women.

This recognition is crucial; despite increasing legal and political efforts to curb violence against women, the scale of violence, both within conflict zones and outside them remains extraordinarily high. In January this year, the Security Council received reports about “alarming […] unacceptable armed violence committed against women around the world”.

The negotiations leading up to the Arms Trade Treaty have revolutionised the discourse surrounding the relationship between the multi-billion pound arms industry and immense human suffering. It has also put into place a strong legal foundation for its regulation. Nevertheless, the Treaty’s effectiveness in protecting human life is highly dependent on the willingness of States to give the human rights and humanitarian law-based provisions their full effect in the face of immeasurable pressure from the industry. States will need to react quickly and effectively to rapidly-changing crises. Moreover, a uniform application of the Treaty is necessary if the provisions are to have any effect. Disregard for the Treaty’s principles by some States might lead to a race to the bottom; States may be unwilling and politically dissuaded from applying the provisions to their full potential because of pressure from the industry, especially where the regulated items can easily be procured through another State Party.

Non-Violence

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Filed under Human Rights, International Criminal Law, Public International Law

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