The Forgotten Treaty
America’s ghastly gluttony for guns shows no sign of abating, nor does the abuse of arms by a few notorious state and non-state actors. With its focus on Las Vegas, the world has forgotten about burgeoning black-market trade of arms across borders, and into conflict zones, and thus about the remedy for this evil – the United Nations Arms Trade Treaty (ATT).
This treaty aims precisely at the misuse of conventional weapons by really bad guys. The General Assembly adopted the ATT on April 2, 2013, and opened it for signature on June 3, 2013. The treaty took effect upon ratification of 50 countries (as per Article 22(1)), which occurred on Christmas Eve 2014, and in total 89 countries have ratified it.
Including the United States, 130 countries have signed it. Signing a deal does not make it law in the signatory country, not until that country ratifies it. In America, that means advice and consent by the Senate. The Trump Administration should seek that advice and consent.
True, the Administration appears allergic to compacts among nations. From the 1994 North American Free Trade Agreement (NAFTA) to the July 2015 Iran Nuclear Deal, it wants to get out of them and did so in January with the Trans-Pacific Partnership. But, the ATT is a deal worth ratifying. If America were to do so, then it would have both international legal leverage and moral authority to encourage other nations to crack down on the cross-border flow of weapons used to commit human rights atrocities and terrorist outrages. And, it would help itself… and probably India, too.
Article 2 identifies them:
- armored combat vehicles
- attack helicopters
- battle tanks
- combat aircraft
- large-caliber artillery systems
- missiles and missile launchers
- small arms and light weapons
Articles 3 and 4 explain the ATT covers ammunition and parts. That’s because it would be ineffectual to regulate conventional arms trade, but not munitions fired, launched, or delivered by those arms, and not components of arms that would enable them to be exported in dissembled form, and easily reassembled by an importer.
Fast Facts About Conventional Arms
Nuclear weapons understandably galvanize the attention of America and the world in contexts such as North Korea and Iran. But, exclusive attention to the menace of one class of weapons (nuclear) has diverted attention from the real scourge of another class (conventional weapons). The eight types of non-nukes the ATT covers when in the wrong hands, are a plague that kills and maims women, children, and innocent non-combatants. That more and more wrong hands are getting their hands on them is incontrovertible.
Consider the February 2017 empirical analysis from the country where Nobel Prizes were first awarded in 1901, mindful of the inspiring irony they originate in the 1895 will of Bofors arms company owner and dynamite inventor, Alfred Nobel. The Stockholm International Peace Research Institute points out:
“The volume of international transfers of major weapons has grown continuously since 2004 and increased by 8.4 percent between 2007–11 and 2012–16…. Notably, transfers of major weapons in 2012–16 reached their highest volume for any five-year period since the end of the Cold War.” [Emphasis added.]
America accounts for 80 percent of global arms exports. Russia and China (both non-signatories to the ATT) are numbers 2 and 3.
On the other side of the trade balance, India (also a non-signatory) matters. SIPRI explains:
“Arms imports by states in Asia and Oceania increased by 7.7 percent between 2007-11 and 2012-16 and accounted for 43 percent of global imports in 2012-16.
India was the world’s largest importer of major arms in 2012-16, accounting for 13 percent of the global total. Between 2007-11 and 2012-16, it increased its arms imports by 43 percent. In 2012-16, India’s imports were far greater than those of its regional rivals China and Pakistan.” [Emphasis added.]
Of course, India suffers grievously from conventional weapons abuse.
The November 2008 terrorist attacks in Mumbai are just one example. Just days ago, two Indian Air Force commandos lost their lives in a gun battle in Hajin, a village in Bandipora, Kashmir (roughly 30 kilometers from Srinagar), and two terrorists (one local, one Pakistani) from Lakshar-e-Taiba were killed. Two bad guys got away, presumably with their conventional arms.
India’s neighborhood is populated by non-signatories to the ATT. The United States warned Pakistan (a non-signatory) in August 2017 to cease harboring “agents of chaos,” saying conditions “will have to change.”
What better way to stop their destabilizing activities in the AfPak region and Kashmir than to stem the flow of weapons that those “agents” use to create “chaos”?
Similar arguments work for Russia: St. Petersburg (October 2015), Volgograd (December 2013), the North Caucasus (August 2012), Moscow’s Domodedovo Airport (January 2011) – all deadly attacks with conventional arms of one kind or another. Ditto for China. The atmosphere in Xinjiang province between Uyghurs and Han is periodically punctuated by violence associated with separatists and Islamist extremists, hence President Xi Jinping’s call in March 2017 for a “Great Wall of Steel.”
And, in selling $110 billion worth of conventional arms to Saudi Arabia, America has no interest in their use in Yemen in ways that worsen the humanitarian disaster there: 10,000 civilians killed, 400,000 injured (as of January 2017). Nor does it help the cause of reform, which America says it backs, to allow with one hand women to drive, but with the other hand undermine human rights by taking aim at religious minorities like Shī‘ītes.
To the contrary, every conventional weapon sold by the United States that is not deployed for a legitimate security purpose risks making America a target by resentful populations against whom the weapon was (mis)fired.
Innocent moderates become vengeful militants.
What serves “America First” are assurances the weapons it exports will not be put to illicit use. That’s the point of the ATT, which means America would help itself – and India, and the world – by ratifying the treaty, and catalyzing further ratifications by Pakistan, Saudi Arabia, Yemen, Russia, China, and India.
The ATT Summarized In A Single Shell Casing
What bad behavior does the ATT target?
The treaty sets three basic prohibitions on the conventional arms trade.
First, countries are prohibited from the transfer of arms in violation of United Nations Security Council measures (arms embargoes in particular, under Article 6(1)). Second, they must not violate other international obligations under international agreements (under Article 6(2)). These obligations are sensible and unsurprising.
The third prohibition is innovative in its explicit linking to Human Rights Law and International Humanitarian Law. ATT puts the onus on States to review cross-border contracts to ensure weapons are not used for human rights abuses, genocide, violations of humanitarian law, war crimes, or terrorism. Article 6(2) says:
“A Party shall not authorize any transfer of conventional arms [as listed in Article 2(1), or ammunitions or parts, as listed in Articles 3-4, respectively] … if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreement to which it is a party.” [Emphasis added.]
The idea is to protect “civilians, particularly women and children,” from armed conflict and violence by “prevent[ing] and eradicate[ing] the illicit trade in conventional weapons, … prevent[ing] their diversion to the illicit market,” and preventing their “unauthorized end use, including in the commission of terrorist acts.” (Preamble, Paragraphs 3, 10.)
Simply put, really bad guys are the third target of the ATT – arms traffickers, human rights abusers, and terrorists.
A country must not authorize the export of conventional arms if it knows they will be delivered directly, or diverted to, those bad guys. Hypothetically, shipping missiles and launchers to Burma, “knowing” the Burmese military would fire them at Rohingya Muslims and their homes in Rakhine, causing the ones still alive to flee to Bangladesh, would violate Article 6(2). It also (as per public statements in September 2017 by U.N. officials) may constitute “war crimes.”
But, what if there is no such “knowledge”? Countries need to differentiate the good guys from the bad guys, and Article 7 tells them how. It lists criteria for them to apply to any proposed conventional arms export deal where Article 6 is inapplicable.
Before granting an export license, a country must “assess the potential” that the arms deal (1) “would contribute to or undermine peace and security,” and (2) “could be used” in a “serious violation” of International Humanitarian or Human Rights Law, or to “commit or facilitate” terrorism or organized crime. If there is an “overriding risk” of these “negative consequences,” then the country must not grant the license. Hypothetically, an honest prognostication should be made as to whether the Burmese military would or could abuse the weapons.
Vary this hypothetical a bit and another virtue of the ATT is apparent: it’s win-win.
Suppose the controversial weapons sale is to Bangladesh (which has not ratified the treaty). What if the exporting country “knows” the arms would go to the Arakan Rohingya Salvation Army to attack the Burmese military? No export license under Article 6(2). What if there is no “knowledge,” but an “overriding risk”? No export license under Article 7. So, Burma benefits from ratifying the ATT, just as Bangladesh does in the initial hypothetical.
Two Non-Hurdles To Ratification
Given President Trump’s legislative record, it’s tempting to be cynical that the President could not possibly win Congressional approval for the ATT. But, “fake news” fuels such cynicism. The Republican-dominated Congress needs to be clear why this treaty makes sense in the peculiar American context.
First, the ATT recognizes the “legitimate political, security, economic, and commercial interests” of countries in the conventional arms trade. (Preamble, Paragraph 4.). The deal does not stop America from selling weapons for lawful purposes. Rather, it ensures the parameters of the export licenses for those sales are precisely the ones the Pentagon would most like to see followed to advance international peace and security – no bullets for bad guys.
It’s a treaty – a contract among nations – irrelevant to in-country arms dealing. The ATT preserves each country’s “sovereignty” to regulate (or not) conventional arms within its territory and heeds “legitimate” gun ownership for “recreational, cultural, historical, and sporting activities.” (Preamble, Paragraphs 5, 13.) “Sovereignty” (or “sovereign”) was mentioned 21 times by the American President in his nine-page September 19 United Nations Address to the General Assembly. So, America Firsters can keep deploying Justice Scalia-style original intent Constitutional interpretative theory to inject steroids into the Second Amendment.
American ratification of the ATT will not prevent another Las Vegas, denuclearize the Korean peninsula, or assure Iran follows its nuclear commitments. But, American ratification will be a shot against unscrupulous arms dealers, organized criminals, human rights abusers, and terrorists. Like the one fired by American patriots at Lexington and Concord in April 1775, that would be (as Ralph Waldo Emerson put it in his Concord Hymn) “a shot heard round the world.”
Raj Bhala is Associate Dean for International and Comparative Law and is the inaugural Leo S. Brenneisen Distinguished Professor, The University of Kansas, School of Law, and Senior Advisor to Dentons U.S. LLP. The views expressed here are his and do not necessarily represent the views of the State of Kansas or the University, or Dentons or any of its clients, and do not constitute legal advice.
The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.