The Arms Trade Treaty at the Edge of Being International Law
Illegal arms are the key components in the genocides, crimes against humanities, war crimes or other serious violations of human rights. Many of the violations that we have witnessed supported by the illegal arms trade. However, political leaders are now serious about ending the flow of arms used to commit crimes against humanity, war crimes.
UN General Assembly, on 2 April 2013, has adopted the Arms Trade Treaty, establishing the highest possible common international standards for regulating or improving the regulation of the international trade in conventional arms.
As a result of the voting session, 154 States voted for the Treaty but only 3 States (Syria, Iran and North Korea) voted against the Treaty. The Arms Trade Treaty set to become international law on 25 December 2014 binding all the countries that have ratified it, after the ratification of the Treaty by 7 States. (Argentina, the Bahamas, Czech Republic, Portugal, Saint Lucia, Senegal and Uruguay are expected to confirm ratification of the treaty at a ceremony at the UN in New York.)
AIM OF THE TREATY
Five of the top 10 arms exporters – France, Germany, Italy, Spain and the UK have already ratified the Treaty. While the USA is yet to ratify it has signed the treaty. There has been resistance to ratification from other major arms producers like China, Canada, Israel and Russia.
Arms Trade Treaty will contribute to international and regional peace, security and stability. It aims to reduce human suffering; promote cooperation, transparency and responsible action by States Parties in the international trade in conventional arms, thereby building confidence among States Parties.
The Treaty includes a number of rules to stop the flow of weapons to countries when it is known they would be used to commit or facilitate genocide, crimes against humanity, war crimes or other serious violations of human rights.
SCOPE OF THE TREATY
The scope of the Arms Trade Treaty refers to the categories of conventional arms and types of activities to which the treaty applies. Treaty explicitly applies to all conventional arms within the following categories:
- Battle tanks;
- Armoured combat vehicles;
- Large-calibre artillery systems;
- Combat aircraft;
- Attack helicopters;
- Missiles and missile launchers; and
- Small arms and light weapons.
Under Article 6 of the Treaty, a state party shall not transfer -that is, export, import, transit, tranship, or permit brokering of- conventional arms, ammunition/munitions, or parts and components in the following circumstances:
- if the transfer would violate its obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes.
- if the transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.
- 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 agreements to which it is a Party.
If an export of conventional arms, ammunition, or parts and components is not prohibited under Article 6, an exporting state must conduct a risk assessment before authorizing the export of such arms or items, to assess the potential that they:
- would contribute to or undermine peace and security;
- could be used to commit or facilitate:
- a serious violation of international humanitarian law (IHL);
- a serious violation of human rights law;
- an offence under terrorism conventions or protocols to which the exporting state is a party; o
- an offence under transnational organized crime conventions or protocols to which the exporting state is a party.
To conclude, if there is an “overriding risk” that arms “could be used” State Parties have an obligation not to authorize the transfer of the conventional weapons.
Furthermore, here is the Small Arms Survey analyzing comprehensively the illicit arms trade.