Home 觀念平台 蔡沛倫:United Nations General Assembly’s Adoption of the Arms Trade Treaty

蔡沛倫:United Nations General Assembly’s Adoption of the Arms Trade Treaty

Pei-Lun Tsai

Ph.D. Candidate, School of Law,
University of Nottingham

On 2 April 2013, the United Nations (UN) General Assembly adopted the Arms Trade Treaty (Treaty), by a vote of 154 in favour, 3 against, and 23 abstentions.*  The Treaty is the result of a six-year long process of consultations and negotiations and the first global treaty aiming at regulating trade of conventional arms, which is reportedly worth $70 billion a year.  This contribution introduces the background of the Treaty and major issues and characteristics of the adopted text and concludes with some preliminary observations.**

Background

While civil society groups have been promoting responsible arms trade since the 1990s, it was until 2006 that the efforts to prepare and draft an arms trade treaty officially began at the UN level.  At the 61st session of the UN General Assembly, a resolution was adopted requesting that the Secretary-General seek view from Member States regarding 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”.  Two years later, the General Assembly decided to establish an open-ended working group, which held two sessions in 2009 and discussed the goals and objectives, scope, principles and draft parameters of the potential treaty.  Building on these step-by-step efforts, in December 2009, the General Assembly eventually decided to convene a United Nations Conference on the Arms Trade Treaty (Conference) in 2012, and four Preparatory Committee sessions were held in 2010 and 2011 in order to make recommendations to the Conference “on the elements that would be needed to attain an effective and balanced legally binding instrument on the highest possible common international standards for the transfer of conventional arms”.  The Preparatory Committee sessions were attended by representatives of Member States, the Holy See, Palestine, and certain inter-governmental organisations (such as the Regional Centre on Small Arms and Light Weapons in the Great Lakes Region, the Horn of Africa and Bordering States, League of Arab States, European Union, and International Criminal Police Organization (INTERPOL), etc.), and representatives of more than 100 non-governmental organisations also participated in some or all of the sessions.  At the fourth and final session of the Preparatory Committee, the Committee Chair produced a non-paper, which outlined the elements of the potential treaty and served as one of the background documents for the Conference.

In July 2012, the United Nations Conference on the Arms Trade Treaty met for four consecutive weeks, during which negotiations on elements of the treaty and informal meetings took place, and the President of the Conference submitted the text of a draft treaty on 26 July.  The text then served as the basis for subsequent consultations and the 2013 Conference.  In the 2013 Conference, held in March, topical informal meetings were held on eleven different aspects of the treaty, such as brokering, scope, and diversion, etc.  After the review of a Drafting Committee, the President of the Conference proposed that the Conference adopt the draft text dated 27 March by consensus.  According to the rules of procedure of the Conference and the General Assembly resolution mandating the Conference, a consensus is required in order for an action on the draft to be taken.  Due to the objections of three States, the Democratic People’s Republic of Korea, Iran and Syria, the Conference failed to reach consensus on the text, and the text was put to the action of the General Assembly, which eventually adopted the Treaty by Resolution 67/234 B on 2 April.

The adopted Arms Trade Treaty

The Arms Trade Treaty is composed of a preamble, eight principles, and twenty-eight articles.  The eight principles, many of which are associated with provisions of the UN Charter and other existing international legal instruments, serve to guide States Parties in their implementation of the Treaty.  While Article 1 lay down the object and purpose of the Treaty, Article 2 sets the scope, with the first paragraph listing the categories of conventional weapons to which the Treaty applies.  Apart from the conventional arms listed under Article 2(1), the Treaty also contains independent regulations of ammunitions/munitions and parts and components capable of assembling Article 2(1) conventional weapons (Articles 3 and 4, respectively).  Subsequent articles (Articles 5-14) deal with various aspects of the transfers of conventional arms: for instance, general implementation, prohibited transfers, export, import, transit, brokering, diversion, record keeping, reporting, and enforcement.  Articles 15 and 16 address the issues of international cooperation and assistance.  In terms of institutional arrangements, Articles 17 and 18 establish the mechanisms of the Conference of States Parties and the Secretariat, respectively.  The final provisions of the Treaty are found in Articles 19 to 28, with Article 21 specifying 3 June as the date when the Treaty opens for signature and Article 22 requiring 50 instruments of ratification/acceptance/approval in order for the Treaty to enter into force.

Observations

While a deeper examination is needed in order to properly evaluate the impact of the Treaty, it is worth mentioning a number of preliminary observations at this point.  Firstly, it should be pointed out that the Treaty applies to the trade of conventional arms, and, thus, international movement not involving the change of ownership of the conventional arms is not within the scope of the Treaty.  Secondly, various provisions of the Treaty highlight the importance of transparency and exchange of information between States Parties.  This characteristic manifests itself in the requirements of, inter alia, the maintenance of national control lists (which will be made available to other States Parties by the Secretariat), the designation of national points of contact, and the duty to report the measures taken to implement the Treaty.  Thirdly, the Treat explicitly acknowledges the relevance of other international legal instruments and areas of international law, and the UN Charter and rules and instruments of international humanitarian law receive particular attention.

Despite the overwhelming support by Member States of the General Assembly, the final text of the Treaty is not without dissent.  The delegations that abstained from voting or voted against the resolution pointed to the Treaty’s failure to address a number of controversial issues.  For instance, Iran criticised the Treaty for its lack of prohibition against transfer of conventional arms to foreign occupiers, and Syria and Nicaragua, among others, questioned the absence of regulation of transfers to non-State actors.  Some delegations expressed disappointment that the Conference did not result in consensus and opined that the negotiation should have continued in order to produce a more balanced and comprehensive text.  Civil society organisations, although in support of the adoption of the Treaty, voiced concern over the narrow categories of weapons specified in the Treaty and the ambiguities in the criteria of export assessment.

Among the criticisms of the final text is the lack of regulation of transfers of arms to non-State actors.  Yet, transfers of arms to non-State actors may violate Article 2(4) of the UN Charter and the principle of non-intervention, and therefore two of the Principles of the Treaty.  As indicated in Article 5(1) of the Treaty, States Parties shall bear the Principles in mind while implementing this Treaty, and Article 6(2) also prohibits transfers of arms in violation of the State Party’s obligations under other international agreements (including the UN Charter).  In short, these relevant provisions of the Treaty may be interpreted to the effect that such a shortcoming can be cured or mitigated.

One other criticism relates to the scope of the Treaty.  While the adopted text limits its scope to the eight categories identified in Article 2(1), the same provision in the 2012 draft actually stipulated that the Treaty applies, at a minimum, to the conventional arms falling under those categories.  By deleting the phrase “at a minimum”, the scope of the Treaty is much narrower.  Hand grenades have been raised as an example of conventional arms now excluded from the application of the Treaty.  According to the adopted text (Article 5(3), States Parties are only encouraged, not obligated, to apply the Treaty to conventional arms beyond those listed in Article 2(1).

The adopted Treaty, being the result of a series of negotiations and compromises, is of course imperfect and cannot please all stakeholders.  The adoption of the Treaty nevertheless marks an important step towards weapons regulation at the international level and highlights the necessity of incorporating humanitarian considerations.  Still, the real challenge lies in the promotion of ratification and implementation of the instrument.  Just as the process leading to the adoption of the Treaty, the following stages require the contribution and engagement of States, civil society organisations, and other relevant actors at all levels.

 

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* Against: Democratic People’s Republic of Korea, Iran, Syria; Abstain: Angola, Bahrain, Belarus, Bolivia, China, Cuba, Ecuador, Egypt, Fiji, India, Indonesia, Kuwait, Lao People’s Democratic Republic, Myanmar, Nicaragua, Oman, Qatar, Russian Federation, Saudi Arabia, Sri Lanka, Sudan, Swaziland, Yemen.  (Absent: Armenia, Cape Verde, Dominican Republic, Equatorial Guinea, Kiribati, Sao Tome and Principe, Sierra Leone, Tajikistan, Uzbekistan, Vanuatu, Venezuela, Viet Nam, Zimbabwe.)

** Please note that this contribution was written in April 2013.  For the list of States that have signed the Treaty as of 3 June, see United Nations Office for Disarmament Affairs (UNODA), ATT Signatories as of 3 June 2013 <http://unoda_web.s3.amazonaws.com/wp-content/uploads/2013/06/Countries-that-have-signed-the-ATT-as-of-3-June.pdf> accessed 5 June 2013.  For further information on the signing event, see UNODA, The Arms Trade Treaty <http://www.un.org/disarmament/ATT/> accessed 5 June 2013.

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