Arms Trade Treaty Consultative Meeting
Report of Seminar held at IPCS on 19 November 2010
Roy Isbister, Small Arms and Transfer Controls Team Leader, Saferworld
Amb. K. C. Singh, Former Secretary, Ministry of External Affairs
Chair: Amb. Arundhati Ghose, Former Indian Permanent Representative at the Conference on Disarmament
Chair’s Introductory Remarks
In Delhi, the issue of an Arms Trade Treaty (ATT) has been raised intermittently. But those who take part in the debate are generally supporters of the idea and seem little interested in discussing the implications of the treaty with people of different opinions. This seminar is an opportunity to do so.
Among India’s strategic community, interest has been limited as yet. India was very much in favour of the Programme of Actions against Illicit Small Arms Trade. Internally, discussions had progressed slowly; internationally, they had gotten fairly far within working groups but no action plan had yet been agreed upon. When the ATT came up, it diverted attention from the Programme of Action and impetus it created in addressing illicit small arms. This fostered reservations about the new arms trade treaty.
The scope of the ATT is unclear given the current context. Today’s shifting world, where new countries are emerging, is not conducive to a global control. Given this difficulty, it is necessary to look at the rationales behind the ATT. What is its desired objective?
The Progress to Date
It might be useful to start with a few clarifications. The ATT is a legally binding global treaty for the regulation of international transfers of conventional arms. A closer look at these words helps specifying the scope of the treaty.
The treaty is supposed to be a regulation and not a ban, for which there is little enthusiasm around the world. It focuses on international transfer rather than domestic control. It regulates transfers beyond commercial transactions and trade; it includes interactions such as gift, aid or leases. It is about conventional arms, not about nuclear and chemical weapons. Finally, the treaty is global; unlike conventions on cluster munitions or landmines. It is meant to be a fundamental set of principles and is therefore essential that all UN members be part of it.
Though the ATT does not exist yet, there is consensus on various elements. The treaty is not intended to challenge the supremacy or sovereignty of states. It will work on a case-by-case basis and not as a general embargo. It would not prevent or replace embargos but hopefully underpin their enforcement. Implementation would take place at the state level. There is no ambition to create a trans-national body. Instead, the aim of the treaty is to enhance international rules, which would have to be applied by member states.
Why is an ATT needed? Easy access to arms can undermine security; it prolongs and increases conflict, facilitates violations and undermines development. Currently, some states have good regulations; others have none whatsoever. Besides, existing regulations are often contradicting, which opens up opportunities for transfers that may have deadly outcomes while remaining legal at every point.
A look at history allows coming back to a question that was raised earlier: Why now? Arms regulation has been an issue since 1995, when the former president of Costa Rica, Oscar Arias, and three NGOs including Saferworld started working on a global agreement to regulate the trade of arms. They identified regional gaps and realized that any control would have to be global.
In 2000, Costa Rica circulated a Framework Convention on International Arms Transfer at the UN. Most states expressed interest but asked for time, claiming that they had other priorities. Momentum gathered when the foreign secretary of the UK threw his weight behind the idea in 2005. A UN resolution to explore the possibility of an ATT was passed in 2006. 139 states voted in favour, 24 including large states such as India and China abstained, and the US voted against.
A Group of Government Experts (GGE) was created, and it was agreed that states would submit their opinions on the ATT. Following the recommendation of the GGE, an open ended working group was established. The most recent resolution was then passed in 2009, which called for a move to negotiate a “legally binding instrument on the highest possible common international standards on the transfer of conventional arms.” The US voted in favour as a result of the change of administration, 20 abstained, Zimbabwe voted against. Though the votes stayed rather constant, each resolution has been more ambitious, which shows that the momentum has been sustained.
There has been a debate over whether the resolution should be consensual. The final decision was that the process leading to the resolution does not need to be consensual, but that the outcome does. This raised concerns in India. But the reality is less problematic than it may appear. In fact, the process has been de facto consensual, the idea being that if a state is dropped during the process it will be impossible to get a consensus at the end.
So far, two preparatory meetings were held, during which state inputs were gathered on three main issues: the scope, parameters, and implementation of the treaty. In preparation for the third meeting, the chair is now asking for draft treaties, which marks a change in the process and in how states engage with it.
The most obvious question when speaking of scope is the range of equipment to which the treaty would apply. So far, talks have focused on “7+1.” This refers to the UN classification in its conventional arms registry — “7” including all types of major arms and “1” small arms. The problem is that this classification is limited. It does not include a variety of aircrafts, medium range artillery, and completely leaves out components, which are what most countries produce. These gaps are very problematic. In fact, many states already have stronger national regulations.
Scope also includes activities. The most obvious is export, but it also applies to import, transit, trans-shipment, or arms brokering. What are the obligations related to these activities? What kind of transfer fall under the treaty — sale, government-to-government transaction?
Parameters deal with the appropriateness of transfer. Human rights violations, breaches of international humanitarian law, regional instability are some of the situations where transfers should not take place. As for implementation, there has been little discussion regarding this issue so far; the general though circular view being that a treaty is needed first.
To conclude, it might be useful to mention the position of a few important states. It has been difficult to know China’s position. Authorities are reluctant to engage beyond the issues that are of immediate importance to them. They are concerned about how the ATT would deal with the arming of Taiwan, or about the EU embargo on China. Russia is one of the abstaining states. It wants some issues addressed, relating to the transfer of technology or unlicensed production. Though the US now supports the treaty, some issues related to the national constituency on ammunitions in particular remain. Pakistan has, until now, been the most openly sceptical state.
India has played as an outsider thus far. It abstained in both resolutions, but speaks favourably of a treaty on illicit arms that would protect the right of self-defence and be implemented on a consensual step-by-step basis. However, this remains very general. The chair is now moving to the next stage and has asked states to clarify their position. For those who defend the ATT, it will be very important to get a better idea of India’s position, and the discussion today gives a good opportunity to do so.
Amb. K C Singh
It is crucial to understand the thought process that has shaped India’s approach to such multilateral regimes. India’s experience has been negative right from the Non-Proliferation Treaty (NPT). It is opposed to regimes that divide nations into groups of haves and have-nots, and are constructed to exercise control over markets and foreign policies of other nations. Obama’s recent visit and the support he expressed for India’s membership in the four dual-use technology regimes are positive signs.
India’s position has inevitably evolved, mainly because of greater self-confidence and international recognition, as well as participation into larger regimes around the NPT. India’s doubts about the altruistic nature of multilateral regimes for the control of arms are now being addressed. A treaty that is consensus based, non-discriminatory, and does not freeze current market shares or future markets would be favoured by India.
India is not a net exporter of arms but a net importer. Its supplies are both responsible and modest in quantity. Safeguarding arms and technology imports is India’s primary concern, given its security environment characterised by Pakistan’s role, power shifts and expanding Chinese military expenditures.
The three major areas of concern for India are small arms, illicit transfers and transfer of technology. Small arms are a serious threat in India, mainly because they are used by insurgent groups like the Maoists. The legal import of small arms is limited and strictly controlled. But illegal traffic is a challenge, mainly because of China’s floating bazaars.
With regard to transfer of technology (ToT), India is not in favour of new licensing regimes that hinder its build-up of capabilities. Over the next decade, India’s defence expenditures will expand in order to match China’s outreach in the Indian Ocean. The ATT would also limit India’s actions in countries like Myanmar, where the need to engage with the leadership goes hand-in-hand with India’s concerns for democracy.
Regarding export, India is a country in transition, which needs to project itself ten years down the line. It may become a net exporter in the future and thus need access to global markets.
New treaties and regimes often create new categories and norms, which are often either too general or discriminatory. Do we really need these new categories and norms? Forums like the United Nation Security Council (UNSC) and the Human Rights Council already allow discussing and creating norms. In the case of conventional arms, existing UN capabilities could be used to list out countries to which weapons should not be transferred. If norms are used to influence domestic and foreign policies, especially in Asia or Africa, they will be resisted. Therefore, the question is whether the ATT can create a criterion on which there is consensus? As in the case of terrorism, difficulties in defining terms at the multilateral level need to be taken into consideration.
Those who build new regimes safeguard their own interests while keeping out the interest of others. They also fearlessly trespass the rules. For instance, China blatantly breached the Missile Technology Control Regime (MTCR) by transferring an entire missile factory to Pakistan. With such examples, how do we judge the sanctity of new regimes?
Instead of creating new regimes, India is trying to integrate into existing ones, at a position of greater responsibility. It aims to play a significant role in the UNSC and to abide by the resolutions of the latter. Moreover, India is different from China, which comes to the negotiation table with issues such as the European Union embargo and Taiwan. Unless the question of Kashmir is forcibly dragged in, India has no such issues.
However, India has some expectations that need to be satisfied. The treaty should be non-discriminatory and not circumscribe India’s needs for self-defence as well as growth. The norms it outlines should be transparent and consensual.
Reservations about the treaty
• Many countries consider that the treaty favours western manufacturing countries. The ATT will prevent emerging powers from freely accessing markets while insuring the historic advantage of manufacturing countries. As such, it will work as a discriminatory instrument of power.
• The treaty can indeed be criticised for favouring manufacturers, and there is a need to define mechanisms that will avoid this. However, this problem must not be over-stated. Apart from the US, no other country is a self-sufficient manufacturer, thus the treaty would bind any other state for export or import.
• Regarding India in particular, it is likely that India will become a significant exporter within ten or fifteen years. Expectedly, India will do like every other country, and will want to access a lucrative market. The treaty being non-discriminatory, India will have the right to apply it as any other country including the traditional manufacturers.
• Beyond the question of non-discrimination, is there really a need for this new treaty, when the UNSC already has the power to declare embargoes? The two bodies have very different ways of addressing this problem. The measure of the Security Council is an all or nothing one; the treaty is much more nuanced, being an attempt to create consensus about a set of rules. Besides, embargoes are famously introduced too late or not enforced; therefore, a treaty would be a valuable alternative.
Weaknesses of the treaty
• Illegal, domestic trade of weapons is the main factor of instability, human rights violations and violence. But the treaty only deals with legal and international transfers. Similarly, it does not deal with non-state actors, who frequently control the access to arms.
• The treaty’s ambition is limited. It is meant to regulate the arms entering the irregular market of a country, not to deal with those already available on this market. As such, it is only one element in a broader solution. Regarding non-state actors more specifically, it is not easy to get a strong consensus on this point because the US insists on supplying to “good” non-state actors. Therefore, the ATT can only reduce the space for those transfers. To do so, implementation will play a crucial role. For this reason, it is essential to agree on criteria allowing a good case-by-case regulation.
• Another weakness of the ATT seems to be related to the chain of intermediaries between the manufacturer and receiver - brokers, consultants, etc? The states will have to control their brokers. Take the case of a small country like Hungary, which is neither a great exporter nor a great importer but wants to know whether a transfer transiting through its territory is legal. Currently, it is difficult to do so. Hungary must request the exporting and importing countries to provide information about the transfer. The process can be long and tedious. This becomes easier with the treaty, as the transfer must hold proof of registration with the exporter and the importer.
Implementation and its challenges
• Demand for conventional arms is higher in areas of conflict. Therefore, no supplier would accept a proscription on legitimate arms supply to such regions. The same difficulty holds for small arms: if transfers are need-based and in the national interest of all participating states, it will be difficult to stop them. How can the treaty be efficient without a supranational authority that can impose legal sanctions?
• Moreover, ‘one man’s illicit is not necessarily another man’s illicit’. How can the treaty deal with different views shaped by different interests regarding the appropriateness of a transfer?
• Like all international laws, the ATT is primarily an instrument of transparency. It has no power to punish states but it can force them to justify themselves. The idea is that by making light on problematic transfers, it will lead states to consider the consequences of a transaction. In order to do so, it may include mechanisms such as a 30-day timeframe to resolve disputes between states, a committee of states that gives consultative opinion on disputes, or the power to ask the UNSC for its opinion.
• Concretely, in many countries risk assessment procedures before transfers are not mandatory. The ATT should build these procedures, and pressure states into following them. After the assessment, states are free to go ahead if they think the transfer complies with the treaty, but may have to justify their decision.
• Besides, some manufacturers actually like the idea of an ATT, because it simplifies their compliance across international borders. For the producers, compliance with different regulatory frameworks can be a nightmare. A unified framework would simplify matters. Here again, one might take an example from Hungary. An arms production company has a joint venture with an Indian company. The Hungarian regularization does not allow a third country to be part of the production while the Indian regularization does. The treaty would help unifying this framework.
• Implementation will determine how the treaty is accepted. Not long ago, a meeting brought together implementation experts for treaties on environment or chemical weapons. One of the points made was that the degree of acceptance among member states has increased significantly over time. For the ATT as well, measures of implementation may help building confidence.
Chair’s Concluding Remarks
India is an emerging power with a rapidly developing industry. This shapes its relation to international laws. Regarding arms, it might not be an exporter today but it has to project itself ten years down the line and insure that it will have fair access to the market. Besides, India’s position on international treaties is influenced by negative experiences of the past. For instance, on the protocol on Anti-Personnel Landmines (APL) under the Convention on Certain Conventional Weapons (CCW), its effort was undermined when a group of countries launched an alternative process.
However, being an emerging power, India also needs to shape opinions. Given that it is already in agreement regarding the need to control the international arms trade, it is time to transition from its defensive posture to making a proposal for a draft at the invitation of the chair.
Report by Lucy Dubochet and Tanvi Kulkarni, Research Interns, IPCS