- 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.
In New York, national delegations have been laboring for several weeks on a proposed Arms Trade Treaty. That process is now in the frantic last few days (the deadline is Friday). The latest draft has produced a mixed reaction from the governments and activists that have pushed for the treaty. Many observers have focused on what type of weaponry is included (at the insistence of the United States among others, ammunition is not covered). But the treaty’s weakness runs much deeper. Here’s the draft’s key section on prohibited arms transfers:
1. A State Party shall not authorize any transfer of conventional arms within the scope of this Treaty if the transfer would violate any obligation under any measure adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes.
2. A State Party shall not authorize any transfer of conventional arms within the scope of this Treaty if the transfer would violate its relevant international obligations, under international agreements, to which it is a Party, in particular those relating to the international transfer of, or illicit trafficking in, conventional arms.
3. A State Party shall not authorize a transfer of conventional arms within the scope of this Treaty for the purpose of facilitating the commission of genocide, crimes against humanity, war crimes constituting grave breaches of the Geneva Conventions of 1949, or serious violations of Common Article 3 of the Geneva Conventions of 1949.
The first two paragraphs add nothing new; they are reaffirmations of existing international legal obligations (not always honored of course). The meat is in the third paragraph, but in its current form it’s not much of a meal. Take the example de jour: Russian arms transfers to the Syrian authorities. Is Russia providing the Assad regime weapons "for the purpose of facilitating" the regime’s crimes? Yes, regime forces commit crimes with imported weapons, but even Moscow’s harshest critics might concede that the Russian purpose is not facilitating the crimes but keeping the regime in power. (The atrocities are an entirely predictable byproduct but not the purpose of the transfers.) It’s for this reason that activists and some diplomats are pushing to change the language in that provision to include mere knowledge that serious crimes would be committed with transferred weapons.
Even if that language is changed, another key limitation will certainly remain: The determination of whether a weapons transfer violates the treaty’s terms is left in the hands of the government doing the transferring. What if other states or outside observers disagree? The current provision on the resolution of disputes reads as follows:
1. States Parties shall consult and cooperate with each other to settle any dispute that may arise with regard to the interpretation or application of this Treaty.
2. States Parties shall settle any dispute between them concerning the interpretation or application of this Treaty through negotiations or other peaceful means of the Parties mutual choice.
3. States Parties may pursue, by mutual consent, third party arbitration to settle any dispute between them, regarding issues concerning the implementation of this Treaty.
In short, no state can be contradicted without its consent. In the aggregate then, the draft treaty amounts to an important statement of principle: countries shouldn’t transfer weapons when doing so is likely to produce human rights violations and serious crimes. It creates a vague and unenforceable obligation to enact national legislation governing the transfers of arms, and it insists that states submit regular reports on their progress.
These are not meaningless accomplishments, and they may help at the margins to tilt certain kinds of states toward more responsible practices. In some contexts, domestic constituencies may be able to use the treaty’s terms to press recalcitrant governments into action. But any notion that this treaty will stop ruthless governments from doing what they are otherwise determined to do is fanciful, even assuming that they sign the treaty in the first place.