The Arms Trade Treaty: Reactions to the Final Draft

At noon on Wednesday, Peter Woolcott, the president of the U.N. Conference on the Arms Trade Treaty (ATT), released the last draft of the treaty. The only further changes will be technical corrections: As Woolcott put it, this is a take-it-or-leave-it document.

This latest draft contains a substantial number of minor changes to the previous text. In reacting to this text, it is important to bear in mind that the treaty has underlying flaws that no amount of improved drafting can fix. The latest draft has also not remedied a substantial number of the problems in previous drafts. But the following deficiencies in the text are both new and particularly regrettable:

• The text now makes frequent use (Preamble paragraph 3, Article 8.1, Article 12.3) of the phrase “end users.” The U.S. had sought to reduce or eliminate the use of this phrase, which can refer to individual firearm owners.
• In Principle 6, states now have a “responsibility” to prevent “diversion.” This change was sought in part by the Arab Group, which seeks to reduce the ability of potential rebels to acquire arms. But it was also important to Mexico, which wants the treaty to require tighter domestic controls on firearms in the U.S. in order to prevent what it argues is their diversion to Mexico. This is therefore a troubling change, especially when taken together with revised Article 5.1, as described below.
• Principle 7 now states even more clearly that nations have “legitimate interests” in acquiring conventional arms “to exercise their right to self-defense.” It is unwise to explicitly extend the right to buy and sell arms to dictatorships. Even if this right already exists as a matter of customary international law, it would be further strengthened by its inclusion in a widely ratified multilateral treaty.
• Article 5.1 requires states to implement the treaty while “bearing in mind the principles referred to in this Treaty.” This effectively incorporates the entire Principles section as an operative part of the treaty. The Arab Group has regularly argued for this step because of the importance it attaches to Principles 6 and 7, among others. This change is particularly dangerous and further confuses the legal status of the Principles section.
• Article 5.3 defines small arms and light weapons by reference to U.N. instruments that do not include the civilian exemption provided by the U.N. Register of Conventional Arms. This is a very undesirable change.
• Article 7.4 incorporates a “gender-based violence” standard that is both poorly defined and is included as a criterion for arms transfers via a backdoor in the treaty.
• Article 11.2, on the important subject of diversion, is so poorly drafted that the obligations it creates are unclear.
• Article 17.4(a) on conferences of nations party to the treaty states that such conferences shall review “developments in the field of conventional arms.” This is an open notice that efforts will be made as soon as possible to expand the scope of the treaty.
• In Article 20.3, amendments to the treaty are allowed by a three-quarters majority vote. Article 20.4 makes it clear that these amendments are binding only on nations that accept them, but this procedure can and will be used to pressure the U.S. to adopt amendments it has voted against.
• The treaty (Article 22.1) will enter into force with only 50 ratifications. That is barely one-quarter of the nations at this conference. This number is far too low, especially since the treaty, once it enters into force, would undoubtedly be described by its supporters as constituting customary international law.

This is not an exhaustive list of problems. The treaty still omits the right of individual self-defense. It is still based on the unacceptable “knowledge” standard for assessing arms transfers. It still contains many articles (such as 8.1 and 11.2) that would allow or encourage foreign nations to make burdensome requests on U.S. industry. And it is still based on the standard of international human rights law, which is often politicized and used against the U.S. and Israel.

It is extremely likely that the ATT will be adopted by consensus tomorrow. The U.S. delegation has succeeded in eliminating or modifying many undesirable elements in previous treaty drafts. But it has not succeeded—and indeed, it could not hope to succeed—in negotiating a treaty that actually lived up to the Administration’s self-imposed mandate of bringing other nations closer to the standard set by the U.S. export control system. For that reason, and for others, the U.S. should break consensus on this treaty text. If the U.S. does not do so, the U.S. should certainly neither sign nor ratify any Arms Trade Treaty that results from it.