Regulating the global arms trade

After decades of debate, the UN has finally approved a new treaty, but will it help prevent ‘future Syrias’?

By YONAH JEREMY BOB
Free Syrian Army (photo credit: REUTERS/Goran Tomasevic)
Free Syrian Army
(photo credit: REUTERS/Goran Tomasevic)
The UN General Assembly voted an overwhelming 154-3 on April 2 to approve a blockbuster treaty aimed at regulating the massive global arms trade in conventional weapons.
After a decades-long struggle, for the first time, arms sales will be linked to the human rights records of the buyers.
The treaty says that sales will be reviewed to scrutinize if those buying the weapons will use them to break international humanitarian law, facilitate genocide or war crimes, or aid in terrorism or organized crime.
It also indicates that nations will need to file public reports expounding on their arms deals in detail.
With such a lopsided vote to regulate weapons, one might expect the lion and the lamb to lie down tomorrow. At the very least, this should make it harder for countries like Russia to argue that their arms sales to Syria are legal under international law, and thus prevent “future Syrias,” as human rights group Oxfam International stated.
But international treaties and law are never that simple and there is a long list of formidable obstacles in the way.
First, it will take years to begin implementing the treaty.
This treaty requires 50 ratifications to go into effect, meaning additional unpredictable votes by nations’ legislatures. Predictions are that this treaty will go into effect “fast,” which could mean “only” a delay of a few years. But the bottom line is the treaty’s 154-3 vote has not made it into law.
Next, there are the loopholes.
It focuses specifically on “sales,” meaning crafty arms sellers can do an end-run around the treaty by making transfers as gifts, loans, leases or aid.
The treaty only covers exports. It does not remotely touch imports – more like a chasm than a loophole, especially since states can be “creative” with defining exports and imports when trade involves a series of exchanges.
Then come some of the problems that go to the very heart of the treaty’s chances of being effective.
The landslide vote obscures the fact that some of the most important actual arms dealer states, China, Russia and India, along with 20 other nations, abstained.
It is much less likely that a treaty will be effective if China, Russia and India ignore it, and by refusing to vote “yes,” these nations have avoided any treaty obligations, while signaling dissatisfaction with the treaty.
Russia reportedly was concerned about how “genocide” would be defined, probably worried about its significant sales to some of the worst human rights offenders.
The US voted in favor, but faces almost certain blockage in the Senate where National Rifle Association opposition has rallied over 50 senators to publicly oppose the treaty. 67 out of 100 votes are necessary for the treaty to be ratified.
This leads into two interconnected fundamental questions with the treaty.
Regarding the first fundamental issue, enforcement, the treaty has no provision whatsoever to compel enforcement for violators besides embarrassing them publicly.
The second interconnected issue is whether the UN treaty system is capable of being a platform for getting its own worst members to stop their most problematic activities.
Connecting the two issues, some treaty detractors argue it is a conceptual non-starter to expect a system which without a second thought involves every country, including all the countries whose regimes survive on receiving illicit arms and butcher their own people, in solving the issue and providing for enforcement.
They say that a better path would be for powerful like-minded nations to negotiate a treaty with fewer loopholes, put it into effect and then try to use it to pressure others into compliance.
Yet, proponents of the treaty say that it and its overwhelming international support are historic and that all is far from lost.
First, the treaty will make an astounding amount of new information about arms sales – always hush hush in the past – public. While it may be cliché that “information is power,” some studies of nations’ behavior shows that even violators do more self-policing and less violating of rules when confronted with greater transparency and hard evidence.
Second, there is a hope that the treaty will put public pressure even on nations who refuse to ratify it. Some proponents predict that this pressure will go beyond being informal, as often treaties with enough countries ratifying them become considered new customary rules of international law.
For example, while only about two-thirds of the world’s nations ratified the Rome Statute establishing the International Criminal Court, and the US has not, most scholars and countries have acknowledged that in only 10 short years, many of the statute’s definitions as to crimes have become canonized new principles of international law.
The US, Israel and other countries which did not ratify the treaty often say they try to voluntarily abide by many of its principles and regularly quote its provisions in debating international criminal law issues.
Oxfam also notes that the major treaty banning landmines is also considered a substantial success, even without the signatures of the US, China, Russia and India.
Third, whether it becomes official international law or not, if most nations starts to comply with its provisions, new norms will be interjected into arms trade negotiations at the bilateral level.
Nations not ratifying the treaty will sometimes be forced to observe its provisions if most buyer-nations are committed to those provisions and incorporate those provisions into their negotiating and contracting process.
Fourth, and specifically addressing China’s objections, it is key to note that Beijing was on the smaller drafting committee, meaning it had significantly input, which may make it harder to completely walk away.
Regarding the US, even if the Senate does not ratify the treaty, US President Barack Obama can use his executive power to issue orders to essentially compel compliance.
Fifth, the treaty may have strong indirect on-the-ground impact.
Amnesty International has pointed out that even in cases like Rwanda, where much of the genocide was perpetrated by machetes, most of the rounding up of people for mass slaughter and Rwandan resistance to outside intervention to stop the genocide was done with small arms provided by France, Egypt and South Africa. Limiting these sales could have reduced and may now reduce the scope of genocides even with weapons like knives, which the treaty does not cover.
But sixth, and most importantly as Amnesty International correctly notes, the treaty inserts human rights language into a treaty that is fundamentally about arms control.
Verbiage in major international treaties matters and to the extent that arms dealer nations previously argued that human rights considerations did not enter the arms trade arena, the rug has been pulled out from under them.
There is no moral or legal “high ground” for them to hide behind anymore when committing violations.
That does not mean they will not still violate the treaty. But making human rights language and principles the starting point for discussing arms deals radically alters the framework for the discussion and places new burdens on arms sellers to justify their actions in the face of highly specific damning evidence.
It is absolutely true that new international law and norms cannot develop without the support of a strong majority of nation states.
But what critics of the treaty may have missed is that with all of its holes and abstentions, 153 countries voted in favor of something, and only 3 had the temerity to vote against. Supporters may not be ready to give up all of their sovereign arms trading powers overnight, but the vote signals they have started to sense and become concerned that the arms trade is sufficiently out of control (the UN says it imposes an “annual burden of armed violence” of $400 billion on the international community) to begin ceding some of their independence.
If the Rome Statute is any sign of things to come, the treaty will be ignored by some, occasionally brazenly, but 10 or so years from now the arms trade conversation will be transformed beyond recognition.