The New International Law of Arm Trade: A Critical Analysis of the Arms Trade Treaty from the Human Rights Perspective

• Author: Jamil Balga
• Position: Independent Scholar
• Pages: 583-649

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2016 e Institute for Migrant Rights Press

e author wishes to thank Dr. Zeray Yihdego (Visiting Fellow, Oxford Institute for

Ethics, Law and Armed Conict, Oxford University, and Reader in Public International

Law, School of Law, University of Aberdeen) for his support and encouragement to

write this article and for his comments on a previous dra. e views expressed and

mistakes made in here are those of the author.

thE nEw intErnational law of arms tradE

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Jamil Balga

Independent Scholar

E-mail: jamil.balga@gmail.com

On December 24, 2014, the Arms Trade Treaty (“ATT” or “Treaty”) entered into

force. is constituted an historic moment, as the ATT is the rst legally binding

global treaty addressing both the illicit and licit international arms trade. It is

a compromise agreement aimed at balancing human security and humanitari-

an interests, such as preventing human rights violations and State security and

economic interests, including self-defense and protecting the legal arms indus-

try. Aimed to be adopted by consensus, serious compromises had to be made

regarding the Treaty’s most important provisions, namely its scope, transfer pro-

hibitions, export restrictions, and enforcement and monitoring mechanisms. As

the negative human rights and humanitarian consequences of the international

arms trade played a crucial role in creating the ATT from the very beginning, this

article critically analyzes the aforementioned provisions and the core issues from

the perspective of human rights. e main research question constitutes whether

these provisions are strong, specic, and unambiguous enough to fulll one of

the Treaty’s main objectives, which is to reduce human suering by substantially

contributing to the prevention and ending of serious human rights violations. It

focuses on the narrow scope of the Treaty, the limited transfer prohibitions, the

ambiguity within the export authorization provision, and the weak enforcement

and lack of proper monitoring mechanisms. It also provides suggestions on how

to remedy the aforementioned shortcomings of the Treaty.

Keywords: Arms Trade Treaty, Human Rights, International Arms Trade, Interna-

III Indonesian Journal of International & Comparative Law 583-649 (October 2016)

584

Balga

tional Humanitarian Law, War Crimes, Crimes Against Humanity, Genocide.

I. INTRODUCTION

On December 24, 2014, the Arms Trade Treaty (“ATT” or “Treaty”) en-

tered into force.1 is constituted an historic moment, as the ATT is the

rst legally binding global treaty addressing both the illicit and licit in-

ternational arms trade.2 While several instruments had previously been

adopted at the international level dealing with components and certain

aspects of the international arms trade,3 the only legally-binding in-

1. e Arms Trade Treaty, Apr. 2, 2013, entered into force Dec. 24, 2014, https://

treaties.un.org/doc/Treaties/2013/04/20130410%2012-01%20PM/Ch_

XXVI_08.pdf#page=21 [hereinaer ATT]. According to its Art. 22, the ATT

will enter into force 90 days aer the 50th ratication. is was secured on

Sep. 25, 2014. Denise Garcia commented that “[t]he treaty entered into force

at the fastest pace seen for an international arms control treaty”. Denise Garcia,

Humanitarian Security Regimes, 91 I’ A. 55, 56 (2015).

2. Previously, there had only been legally-binding agreements at the regional lev-

el addressing the export and import of conventional arms, such as the 2008

European Union Council Common Position dening common rules govern-

ing control of exports of military technology and equipment, 2008/944/CFSP,

adopted Dec. 8, 2008, O J.   E. U L 335/99, http://eur-lex.

europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32008E0944&from=EN.

[hereinaer EU CCP]; and the 2006 ECOWAS Convention on Small Arms and

Light Weapons, eir Ammunition and Other Related Materials, Econ. Cmty.

of W. Afr. States, adopted June 14, 2006, entered into force Nov. 20, 2009, http://

www.poa-iss.org/RegionalOrganizations/ECOWAS/ECOWAS%20Conven-

tion%202006.pdf [hereinaer ECOWAS Convention]; see also U.N.G.A., 72nd

plenary meeting, Statement by Ireland, 13, U.N. Doc. A/67/PV.72 (Apr. 2,

2013), undocs.org/ A/67/PV.72 [hereinaer 72nd plenary meeting].

3. e 1992 U.N. Register of Conventional Arms, Categories of Equipment and

eir Denitions, G.A. Res. 46/36, U.N. Doc. A/RES/46/36L (Dec. 6, 1991),

http://www.un.org/Depts/ddar/Register/4636.html (establishing the UN Reg-

ister with eect from Jan. 1, 1992) [hereinaer U.N. Register]; the 1996 Wasse-

naar Arrangement on Export Controls for Conventional Arms and Dual-Use

Goods and Technologies, Guidelines & Procedures, including Initial Elements,

http://www.wassenaar.org/wp-content/uploads/2016/01/Guidelines-and-pro-

cedures-including-the-Initial-Elements-2015.pdf; the 2001 United Nations

Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in

Small Arms and Light Weapons in All its Aspects, U.N. Doc. A/CONF.192/15

(July 20, 2001), http://www.un.org/events/smallarms2006/pdf/PoA.pdf; and

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e New International Law of Arms Trade

Balga

ternational agreement had been the 2001 U.N. Firearms Protocol.4 In

force since 2005, this instrument applies only to a particular category

of arms, namely rearms as well as their ammunition and related parts

and components.5 It also does not aim at regulating the trade in the

covered items, per se—or in other conventional arms in general, but

to prevent, curb, and end the illicit manufacturing of and tracking

in rearms, their ammunition, and related parts and components by

fostering strong cooperation among its States Parties.6

Aimed at lling this regulatory gap at the international level, a

global coalition consisting of Nobel Peace Prize laureates and non-

governmental organizations (NGOs) initiated a process in the 1990s

to create a legally-binding agreement on the international arms trade.7

Subsequently joined by States concerned with the matter, this coalition

successfully lobbied the United Nations (U.N.) General Assembly

(G.A.) to place the issue of the unregulated international arms trade

on its agenda.8

is led to the adoption of General Assembly resolution 61/89 of

December 6, 2006 entitled “Towards an Arms Trade Treaty”, in which the

G.A. recognized that “the absence of common international standards

the 2005 International Instrument to Enable States to Identify and Trace, In

a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (Dec.

8, 2005), http://www.un.org/events/smallarms2006/pdf/international_instru-

ment.pdf [hereinaer ITI].

4. Protocol Against the Illicit Manufacturing of and Tracking in Firearms, their

Parts and Components and Ammunition, Supplementing the United Nations

Convention Against Transnational Organized Crime, adopted May 31, 2001,

entered into force July 3, 2005, 2326 U.N.T.S. 208, https://treaties.un.org/Pag-

es/ViewDetails.aspx?src=IND&mtdsg_no=XVIII-12-c&chapter=18&lang=en

[hereinaer U.N. Firearms Protocol].

5. Id. art. 4(1).

6. Id. art. 2.

7. is group prepared a Dra Framework Convention on International Arms

Transfers in 2001, which contains core substantive prohibitions reecting ex-

isting international legal commitments, including those of the 1949 Geneva

Conventions and applies them to international arms transfers. Mechanisms

crucial for their eective implementation are also contained in this document,

Dra Framework Convention on International Arms Transfers, www.seesac.

org/sasp2/english/publications/2/4_1_Framework.pdf.

8. See Garcia, supra note 1, at 69.