- By David BoscoDavid Bosco is a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
At the United Nations, national diplomats, NGOs, and UN officials are gearing up for a July negotiating session on a long sought arms trade treaty. The notion is to enact international standards for transfers and sales of conventional weapons, from AK-47s to fighter jets. At a recent seminar in New York, co-hosted by the Japanese, Turkish and Polish missions to the UN, diplomats and specialists spelled out some of the daunting complexities negotiators still face.
In theory, the case for comprehensive treaty to address conventional arms flows is sound. As my FP colleague Christian Caryl pointed out here, it’s conventional weapons, not their more anxiety-inducing cousins, that actually take lives in conflicts around the world:
WMD have killed very few people in the decades after World War II. The overwhelming majority of the millions of people who have died in conflicts since 1945 were killed by bullets, bombs, and artillery. And most of these casualties, in turn, are caused not by tanks or planes but small arms — which nowadays usually means assault rifles.
Existing international law covers nuclear, chemical and biological weapons; other international mechanisms attempt to staunch the illicit flow of weapons. But when it comes to states or businesses openly selling conventional weapons to others, international law has little to say, even when the recipient country or group may be putting the weapons to bloody and irresponsible use. The UN hosts a voluntary registry to which states can report arms transfers (they do sometimes, but reporting rates have apparently declined in recent years). Plenty of states, including the United States and the EU countries, have tough domestic export restrictions, but they do little to address the practices of others.
Predictably, the UN negotiations have attracted the attention of gun rights organizations. And that in turn has got some folks on Capitol Hill engaged. For the most part, the fears articulated by these voices are untethered from the actual substance of the negotiations, which will not include domestic arms productions and transfer. The relevant question is not whether the planned treaty will impinge on the rights of law-abiding gun owners, but whether it will in any meaningful way impact the flow of arms to bloody-minded governments and organizations.
Although negotiators have been preparing the groundwork for years, key issues remain unresolved. These include whether the treaty will cover all classes of weapons (ammunition is a particularly tough subject), whether developing states will get funds to improve their export controls, and whether the treaty will create legal obligations for brokers and middlemen. Most important is the set of standards against which arms transfers will be judged. Are certain governments and organizations inherently illegitimate recipients? And how much assurance do those transferring weapons need that their product won’t be used for human rights violations?
At the moment, negotiators appear headed toward a rather vague insistence that sellers not transfer weapons they suspect will be used for human rights violations or to undermine international security. But who gets to decide when a seller should be suspicious? It appears likely that states themselves will be the judge and jury. Some observers hope that the International Court of Justice might have a role refereeing the treaty provisions, but that seems unlikely (and not terribly reassuring, given the glacial pace of ICJ proceedings). The treaty may also include some kind of reporting requirement, but probably one that cannot be effectively enforced.
The question that the advocates enthusiastically pushing this treaty may soon face is whether a porous treaty that is ripe for abuse is better than no treaty at all. At the New York roundtable, I had an exchange with Jeff Abramson, who coordinates the civil society effort on the issue. While insisting that NGOs would not support a deeply flawed treaty, he argued that even an imperfect document may change international norms and facilitate domestic steps against dangerous arms transfers. He could be right.
But a treaty whose letter and spirit gets regularly abused may also further debase the coin of international law. Norm-creation works in many directions, and a weak treaty may unintentionally bolster the norm that treaty requirements aren’t serious. In the past twenty years, civil society organizations have become major players in developing new international treaty regimes. With that newfound influence should come some sense of responsibility for negotiations that are, by their nature, exercises in locating the lowest-common denominator. States often endorse ineffective instruments just to say they’ve done something. NGOs should hold themselves to a higher standard, and that might just mean distancing themselves from a process they helped initiate.