THE ARMS TRADE TREATY : A PROMISE TOWARDS THE VICTIMS OF ARMED CONFLICTS

Rastislav Šutek

Abstract The paper examines the Arms Trade Treaty´s final text with the overall evaluation of its loopholes that might lower the potential of the treaty to contribute to its humanitarian goal, article by article and paragraph by paragraph. Several major provisions of the final treaty text are compared with the previous wordings of the treaty from the protracted, more than a decade lasting negotiation and drafting process. The introductory section starts with the examination of the disarmament law and arms control leading to overall presentation of the drafting process on the Arms Trade Treaty. The second section deals with the final treaty text and interpretation of its core provisions, starting with the preamble of the treaty including its principles followed by interpretation of the treaty´s normative body with the evaluation of the treaty´s scope, prohibitions and restrictions of conventional arms transfer. The paper concludes with a brief summary and final remarks stating the author´s overall opinion on the treaty´s destiny.

Key words arms trade, conventional arms, disarmament, arms diversion, arms brokering, genocide, crimes against humanity, war crimes, terrorism

“We owe this landmark UN treaty to those who have fallen victim to armed conflict and violence, to all the children deprived of a better future, and to all those risking their lives to

build peace and make this a better world,”

Secretary-General Ban Ki-Moon, talking to the participants of the United Nations Final Conference on the Arms Trade

Treaty, New York, 19 March 2013.

1. THE ODYSSEY TOWARDS THE ARMS TRADE TREATY

The adoption of the Arms Trade Treaty (hereinafter "ATT") arrives in time when the fight against impunity of conduct ammounting to genocide, crimes against humanity and war crimes under the banner of the International Criminal Court is surrounded perhaps by rightful criticism from all sides. While armed hostilities continue on daily bases in Mali by Tuareg rebels and the blood bath seems to be endless in Syria, the treaty shows a remarkable effort of the international community to limit the illicit arms trade around the globe.

Unlike their victims, arms survive from conflict to conflict1. During Yugoslav crises Russian armed forces in collaboration with the former KGB members have supported the Serbs by light arms worth $360 million2. The Tuareg rebels gained access to certain weaponry from the former Gaddafi regime of Lybia forcing an estimated number of 200 000 Malians to flee from their homes under the threat of daily horrors and food crisis. More recently, the Syrian blood bath is fuelled by weaponry from outside of the conflict´s epicenter. While Russian Federation continues to be the major supporter of President Bashar al-Assad, several countries already announced their support to opposition fighters and another superpower is considering the possibility of arms supplies to the Syrian opposition if not already taking part in arming it. These are only a few examples of situations the ATT is aiming to prevent. The numbers of victims of each armed conflict remind us that small arms and light weapons are truly weapons of mass destruction3.

95% of all weapons in Africa, mostly derivatives of Kalashnikov rifle, were imported from outside of the continent4. For instance, the price of an AK-47 rifle was $6 in Lomashasa, Swaziland, one of the major black markets in African region5. It is estimated that all armed conflicts cost Africa $18 billion per year. The same amount as provided to Africa in the form of global aid anually. Since 2000, arms and

1 Quote is part of Secretary-General´s statement to the Security Council meeting on small arms, 24 September 1999, available at: http://www.un.org/News/Press/docs/1999/19990924.sgsm7145.doc.html (accessed on 13 August 2013). 2 Zeray Yihdego, The Arms Trade and International Law. Oxford: Hart Publishing (2007), 16. (hereinafter "The Arms Trade and International Law"). 3 See Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century, Pt IV, Freedom From Fear. New York: The United Nations Department of Public Information (2000), 52. accessed on 13 August 2013, http://www.un.org/millennium/sg/report/ch3.pdf 4 Oxfam International, The ABC of the Arms Trade Treaty, (2012), 6. accessed on 13 August 2013, http://www.oxfam.org/sites/www.oxfam.org/files/arms-trade-treaty-abc-oxfam-2012.pdf (hereinafter "The ABC of the Arms Trade Treaty"). 5 The Arms Trade and International Law, 15.

ammunition worth $2.2 billion have been imported to states under arms embargoes.6

And as the Secretary-General noted during the 2012 United Nations Conference on the Arms Trade Treaty, the expenditures for 60 years of UN peacekeeping are lower than 6 weeks of current military spending.7

The Arms Trade was poorly codified until this year´s recent development. The dramatic changes of geo-policital climate after two world wars and especially the Cold War led the international community to rethink its view on disarmament and arms control8. Unlike the prohibition of transfer of chemical weapons9, nuclear weapons10, biological weapons11, anti-personnel mines12, or cluster munitions13, conventional weapons were missing a multilateral international treaty prohibiting the transfer of entire scope of conventional weapons. In 1980, a regulation dealing with transfer of non-detectable fragments, landmines, booby traps and similar devices, incendiary and blinding laser weapons was adopted14. Although several national regulations were enacted, the arms trade was still lacking a universal solution. In 2010, only 90 states reported national control on the import of small arms and light weapons.15 However, certain progress can be seen on regional level. Especially, from the 1998 European Union Code of Conduct on arms exports16 to the 2008 Common Position of the Common Foreign and Security Policy defining common rules governing the control of exports of military technology and equipment17 . ECOWAS Convention on small arms18 of 2006 is also worth noting.

6 The ABC of the Arms Trade Treaty. 6. 7 Quote is part of Secretary-General´s remarks to the United Nations Conference on the Arms Trade Treaty, 3 July 2012, available at: http://www.un.org/News/Press/docs/2012/sgsm14394.doc.htm 8 See further The Arms Trade and International Law, 3-4. 9 See Convention on the prohibition of the development, production, stockpiling and use of chemical weapons and on their destruction, Geneva, 3 September 1992, UNTS 1974, 45. 10 See Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, UNTS 729. 11 See Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, UNTS 1015. 12 See Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Oslo, 18 September 1997, UNTS 2056, 211 (hereinafter "Anti-Personnel Mines Convention"). 13 See Convention on Cluster Munitions, Dublin, 30 May 2008 (hereinafter "Convention on Cluster Munitions"). 14 See Convention on Prohibition or Restriction on the use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, Geneva, 10 October 1980, UNTS 1342, 137. 15 The ABC of the Arms Trade Treaty. 6. 16 See European Union Code of Conduct on Arms Export, Brussels, 5 June 1998. 17 See Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, Brussels, 8 December 2008, Official Journal of the European Union L 335/99.

Certain international interest in regulating the arms trade can also be found in the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies of 199619.

In 2006, the UN General Assembly defined in its resolution 61/89 the 'absence of common international standards on the import, export and transfer of conventional arms as a contributory factor to conflict, the displacement of people, crime and terrorism' and that it 'undermin[es] peace, reconciliation, safety, security, stability and sustainable development'. At the same time it called on the UN Secretary-General to 'establish a group of governmental experts [...] to examine, commencing in 2008, the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms'20.

An open-ended Working Group was established by the UN General Assembly taking into account the recommendation of the Group of Governmental Experts that 'further consideration of efforts within the United Nations to address the international trade in conventional arms is required on a step-by-step basis in an open and transparent manner'21. Later on, UN General Assembly adopted a resolution 64/48 calling for a 'United Nations Conference on the Arms Trade Treaty to meet for four consecutive weeks in 2012 to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms'. The Working Group was transformed in 2010 into preparatory committees for the ATT Conference22.

The preparatory committees met four times between 2010 and February 2012 followed by the four-week Diplomatic Conference in New York from 2 to 27 July 2012 reaching no agreement. The failure is mostly explained by differences between the more progressive 'like-minded' states and the group of 'sceptics'. Also the two largest arms-exporting states, the Russian Federation and the United States, indicated unwillingness to reach a common agreement. While one group of states prefered a treaty focusing on illicit trade in a limited number of weapons, the second group was

18 See ECOWAS Convention on Small Arms and Light Weapons, their Ammunition and Other Related Materials, Abuja, 14 June 2006 (hereinafter "2006 ECOWAS Convention on Small Arms and Light Weapons"). 19 See Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, 12 July 1996, Wassenaar. 20 GA Res 61/89 of 18 December 2006. 21 UN doc. A/63/334, 26 August 2008, 16. 22 GA Res 64/48 of 12 January 2010.

in favour of a regulation dealing with all international transfers of conventional weapons.23

UN General Assembly decided to restore its faith in achieving an acceptable treaty text in its resolution 67/234 of 24 December 2012. The Final United Nations Conference on the Arms Trade Treaty was held from 18 to 28 March 2013 at UN Headquarters in New York. The Final Conference was discussing three possible draft treaty texts and an agreement was within reach24. However it did not prevent Iran, the Democratic People’s Republic of Korea and Syria in opposing the treaty´s adoption. But the adoption was only postponed as on 2 April 2013, the text of the ATT was adopted by the UN General Assembly25.

The ATT was opened for signature on 3 June 201326. 67 states signed the ATT that day27. Until 11 June 2013, the ATT comprised 72 signatures. As of 12 August 2013, 84 states have signed the treaty and 4 states have ratified it28. The destiny of the treaty is nevertheless connected with signatures of major superpowers and the permanent members of the Security Council, at the same time the world´s largest arms exporters. The signature of the United States is still missing. However future interest in signing the ATT was already indicated.29

23 Geneva Academy of International Humanitarian Law and Human Rights, The Draft Arms Trade Treaty – Academy Briefing No. 2. Geneva: Geneva Academy of International Humanitarian Law and Human Rights (2012), accessed 14 August 2013, 7-8, http://www.geneva- academy.ch/docs/publications/ATTbriefing2_WEB.pdf (hereinafter "Draft ATT Geneva Academy Briefing 2"). 24 Geneva Academy of International Humanitarian Law and Human Rights, The Arms Trade Treaty – Academy Briefing No. 3. Geneva: Geneva Academy of International Humanitarian Law and Human Rights (2013), accessed 14 August 2013, 6, http://www.geneva- academy.ch/docs/publications/Arms%20Trade%20Treaty%203%20WEB%282%29.pdf (hereinafter "ATT Geneva Academy Briefing 3"). 25 UN General Assembly resolution 67/234B was adopted by a vast majority of 154 states in favour, 3 against and 23 abstaining states. Later on Angola changed its vote from the abstention to a vote in favour increasing the positive votes to 155. 26 Arms Trade Treaty, New York, 2 April 2013, GA Res A/RES/67/234, art. 21, para. 1 (hereinafter "ATT"). 27 Note that a group of states including China, Egypt, Ecuador and Pakistan challenged the adoption of the treaty by the General Assembly. It is the first time that the General Assembly has adopted legally-binding rules to regulate international transfer of conventional weapons. 28 Iceland, Guyana, Nigeria and Antigua and Barbuda. In accordance with art. 22 of the ATT, the treaty shall enter into force ninety days following the date of the deposit of the fiftieth instrument of ratification, acceptance or approval with the Depositary. Art. 27 of the ATT establishes the Secretary- General of the United Nations as the Depositary of the treaty. 29 Unlike positive statements of US Secretary of State John Kerry, the Senate´s show vote in March 2013 opposed ratification of the ATT.

2. LANGUAGE AND WORDING OF THE ARMS TRADE TREATY 2.1. The title of the treaty

There was no debate about the treaty´s title during the first of final diplomatic conference. Rather it follows the title of UN General Assembly resolution 64/48. It refers to 'arms' rather than the narrower term 'conventional arms'. It refers at the same time to 'trade'. Broader term 'transfer' also includes gifts, leases and loans as 'trade' is limited only to action of buying and selling goods and services.30 This terminology however caused harsh debates during the conferences.

2.2. The preamble of the treaty

The preamble starts with a reference to 'the states parties to this treaty'. This wording was challenged during the drafting process. The European Union and its member states supported also by the Economic Comunity of West African States (ECOWAS) proposed that the regional economic integration organizations should be permitted to ratify it31. It is a common practice that an international treaty starts with a preamble that defines its purpose, although there is no legal requirement for such a treaty practice32. The preamble of the ATT is divided into several paragraphs. It refers to UN Charter, the 2001 Firearms Protocol33, the 2001 UN Programme of Action on Small Arms and Light Weapons34, UN Disarmament Commission Guidelines for international arms transfer within General Assembly resolution 46/36H and the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons35. The purposes and principles of the UN are included in articles 1 and 2 of the UN Charter. The 1996 UN Disarmament Commission´s Guidelines on International Arms Transfers implied

30 ATT Geneva Academy Briefing 3, p. 7. 31 For instance the UN Convention against Transnational Organized Crime is opened for regional integration organizations. 32 For instance the four Geneva Conventions of 1949 lack a preamble. 33 See Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime, New York, 31 May 2001, UNTS 2326, 208 (hereinafter "2001 Firearms Protocol"). 34 See UN doc. A/CONF. 192/15, 7 (hereinafter "2001 UN Programme of Action on Small Arms and Light Weapons"). 35 See International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons, New York, 8 December 2005 (hereinafter "2005 International Tracing Instrument").

recognition of limitations on arms transfers within the principles and purposes of the UN.36.

Paragraph 2 of the preamble refers to art. 26 of the UN Charter that aims to 'promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world´s human and economic resources'. The principle of least diversion of resources can be found in several guidelines dealing with arms export control at international and regional level, for instance the Wassenaar Best Practice Guidelines for Export of Small Arms and Light Weapons37

or the Organization for Security and Co-operation in Europe Principles Governing Conventional Arms Transfer38.

Although paragraph 3 explicitly refers to 'illicit trade in conventional weapons', the definition of the term 'illicit' is unfortunately nowhere to be found in the ATT. 'Illicit arms trafficking' was defined by UN Disarmament Comission in its 1996 Guidelines as 'cover[ing] that international trade in conventional arms which is contrary to the laws of States and/or international law'39. This defition thus involves illicit transfer violating customary international law, treaties in question and certain national laws40. 'Illicit manufacturing' was already defined in the 2001 Firearms Protocol41 as well as 'illicit trafficking'42. The Protocol requires licensing or authorization of the manufacture of parts and components to be in accordance with domestic law43. The Protocol is concerned with authorized transfer and an unathorized one.44 Same approach can be found within the Organization of American States45. The March 2013 Conference replaced final wording of this paragraph stating 'unathorized end use' with 'unathorized end use and end users, including in the commission of terrorist acts' thus broading it, implying inclusion of unathorized armed non-state actors within the 'end-users'. However, the abstaining voters and the voters against the adoption during the General Assembly´s ATT

36 See UN Disarmament Commission document A/CN.10/1996/CRP.3, 3 May 1996 (hereinafter "1996 UN Disarmament Commission´s Guidelines"). 37 Wassenaar Best Practice Guidelines for Export of Small Arms and Light Weapons, accessed on 15 August 2013, http://www.wassenaar.org/docs/best_practice_salw.htm. 38 Organization for Security and Co-operation in Europe Principles Governing Conventional Arms Transfer, accessed on 15 August 2013, http://www.osce.org/fsc/42313. 39 1996 UN Disarmament Commission´s Guidelines, para. 7. 40 ATT Geneva Academy Briefing 3, 9. 41 2001 Firearms Protocol, art. 3(d). 42 Ibid., art. 3(e). 43 Ibid., art. 3(d). 44 Draft ATT Geneva Academy Briefing 2, 9. 45 See Inter-american Convention against the Illicit Manufacturing of and Trafficking in Fireams, Ammunition, Explosives, and Other Related Materials, Washington, 14 November 1997, art. 1, paras. 1 and 2.

adoption correctly noted that this wording refers to 'illicit trade' only and does not prohibit all arms transfers to unathorized armed non-state actors.46

The following fourth paragraph of the preamble refers to 'legitimate political and security interests of states' thus connecting the legitimacy of arms trade issue most probably with self-defence, law-enforcement or contributions to peacekeeping operations.47 The fifth paragraph recalls the sovereign rights of states to govern internal procedures within state´s territory. Unfortunately, a very "popular" phrase of responsibility of states over their internal regulations and internal transfer control was excluded from the final treaty text limiting the treaty´s application to international trade in conventional arms without applicability of treaty´s provision to purely domestic trade or transfer, sale, movement, change of ownership or control48.

The sixth preambular paragraph refers to 'pillars of the UN system and foundations for collective security'. The origins of the paragraph´s terminology may be found in the statements to the General Assembly of Secretaries-General Kofi Annan and Ban Ki-Moon that labeled security, development and human rights as three pillars of the United Nations49. 'Peace and security, development and human rights' were also marked as the 'foundations for collective security' in the General Assembly resolution 64/48. The very first origin may probably date back to the 2005 World Summit Outcome document50. The UN Disarmament Commission Guidelines for International Arms Transfer found their place in General Assembly resolution 46/36H and this elaboration has been placed into preambular paragraph n. 7. The UN Disarmament Commission Guidelines for International Arms Transfer contain several principles for an effective control of international arms transfer51.

Paragraph 8 emphasizes the value of several documents that have already been discussed with regards to previous preambular paragraphs. The 2001 UN Programme of Action is a political document expressing the steps states can undertake to control small arms transfer52. The Firearms Protocol of 2001 was until now the only legally binding document regulating small arms53. Its application is, however, without prejudice to a state party´s right to 'to take action in the interest of

46 Draft ATT Geneva Academy Briefing 2, 9. 47 Ibid., p. 10. 48 ATT Geneva Academy Briefing 3, 10. 49 See statements of Kofi Annan and Ban Ki-Moon to the General Assembly, 14 December 2006, availalble at: http://www.un.org/News/Press/docs/2006/ga10556.doc.htm. 50 See GA Res 60/1 of 24 October 2005. 51 See 1996 UN Disarmament Commission´s Guidelines. 52 ATT Geneva Academy Briefing 3, 11. 53 Draft ATT Geneva Academy Briefing 2, 12-13.

national security consistent with the Charter of the United'54. The International Tracing Instrument is a non-legally binding instrument containing small arms tracing definition55. Consequensces of the illicit and unregulated trade in conventional weapons are expressed in ninth paragraph. The following tenth paragraph includes a reference to civilians in armed conflicts, namely 'women and children' as previously stated in Security Council resolution 1325 (2000). It is the only paragraph of the ATT containing the term 'armed violence'. Without a clear explanation in the treaty it is likely to be a phrase for situations not amounting to armed conflicts56.

The eleventh paragraph follows the wording of the previous paragraph. The provision is a result of a group of states led by Norway with the aim to include a substantive provision in the treaty dealing with care, rehabilitation, and reintegration of victims of armed conflicts. Setting this wording into the preambular statement lowers its importance as it is not imposing any obligation upon the signatories with regards to victims' needs57. Moreover, the wording limits its applicability to 'victims of armed conflicts' only as oppossed to previous paragraph that includes the term 'victims of armed violence'58. Broader philosophy of the treaty encompasses all victims of armed violence, victims of acts of terrorism or also victims of insufficient internal regulation of a state not prohibiting circulation of small arms and light weapons within certain social groups. The subsequent paragraph n. 12 is a result of an expressed will of several states to broaden the internal restrictive measures within their jurisdiction with the ATT as a ground for further internal regulations. An opposite proposal was submitted during the drafting process advocating for a margin of appreciation with regards to permission of arms export that follows the treaty´s criteria thus making the treaty a set of maximum rules. This proposal was challenged and not incorporated in the final text59.

Paragraph n. 13 is a result of a group of states led by Canada and the USA willing to express no restrictions upon the legitimate arms trade in conventional weapons or arms circulation for the purposes listed in this paragraph60. The reference to regional organizations that was included in the fourthteenth paragraph is missing in the 26 July 2012 draft treaty text. However, the possibility for the ATT to be opened for regional organizations was exluded. Their role is thus insignificant also

54 See 2001 Firearms Protocol, art. 4. 55 See 2005 International Tracing Instrument, para. 5. 56 ATT Geneva Academy Briefing 3, 11. 57 Draft ATT Geneva Academy Briefing 2, 13. 58 ATT Geneva Academy Briefing 3, 12. 59 Ibid. 60 Ibid.

due to current wording 'upon request' implying that there are no direct proposals possible towards member states regarding implementation of the treaty61.

Paragraph n. 15 originated in the ninth preambular paragraph of UN General Assembly resolution 64/48. The role of NGOs and their support for a global ATT was significant since the begining of the drafting process. The reference to industry was added at the Final Conference. A guarantee for developing states was included in the sixteenth preambular paragraph. The fear was based on the alleged technological advantage of developed states when interpreting the ATT as a restriction for transfer of technology or equipment. A broader interpretation of this preambular paragraph speaks about permission of transfer of technology or equipment including weapons for the purpose of maintaining peace.62 The final treaty text contains also a preambular paragraph n. 17 that is not found in the 26 July 2012 draft treaty text. The universal adherence to a treaty is perhaps a goal of each multilateral treaty.

2.3. The principles of the treaty

The normative section of 24 July 2012 draft treaty text began with principles of the ATT. Two days later, the principles were inserted into the preamble. The reason for this seems to be reduction of possible risk that the principles might be enforced as the normative text of the treaty.63 However, the preamble itself is still a valuable tool for legal interpretation64. It is not a common element of international treaty practice to include principles within the preamble body65. Art. 5 of the ATT requires states parties to implement the treaty 'in a consistent, objective and non-discriminatory manner, bearing in mind the principles referred to in this treaty'. The elements of these principles originated in binding treaty law or customary law.66

The first principle changed its wording since the 26 July 2012 draft treaty text. Closer specification of self-defence in accordance with art. 51 of the UN Charter was added to the wording. The word 'inherent' is interpreted as a pre-existing customary law67. The right to state´s self-defence is thus dependent upon certain weaponry,

61 Ibid. 62 Draft ATT Geneva Academy Briefing 2, 14. 63 Draft ATT Geneva Academy Briefing 2, 9. 64 See Vienna Convention on Law of Treaties, Vienna, 23 May 1969, UNTS 1155, 333, art. 31 para. 2 (hereinafter "VCLT"). 65 ATT Geneva Academy Briefing 3, 13. 66 Ibid., p. 13. 67 See for instance ICJ, Case Concerning Military and Paramilitary Activities In an Against Nicaragua (Nicaragua v. USA), Merits, Judgment of 27 June 1986, ICJ Reports 1986, para. 176.

including conventional arms. There is no provision in the treaty explicitly dealing with transfer of arms for the purpose of self-defence and it seems an unlimited option of arms transfer unless the Security Council acting under Chapter VII of the UN Charter adopts a resolution prohibiting certain economic relations including weapons transfer.68 One of the pillars of public international law, the settlement of international disputes by peaceful means, is embodied in the second principle. It includes, inter alia, negotiation, good offices and mediation, inquiry, conciliation or arbitration and settlements of disputes by the International Court of Justice69.

Mirrorred wording of art. 2 para. 4 of the UN Charter is present in the third ATT principle. The prohibition on the threat or use of force is now considered a customary law70. Principle of non-intervention, at the same time fourth ATT principle as well as several other ATT principles were already included in UN General Assembly resolution 2625 (XXV) also known as Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. With regards to arming and non- intervention the International Court of Justice ruled that 'training, arming, equiping, financing and supplying contra forces or otherwise encouraging, supporting and aiding military and paramilitary activites in and against Nicaragua' amounts to violation of customary international law rule on non-intervention71.

The fifth principle contains a reference to several documents with the purpose to ensure respect for international humanitarian law and human rights. General Assembly resolution 64/48 already included a reaffirmation of 'respect for international law, including international human rights law and international humanitarian law.' The International Committe of the Red Cross noted in one of its guides that arms transfers decision should include a consideration of whether the recipient is likely to respect international humanitarian law72. Common art. 1 of the four Geneva Conventions themselves deals with a duty of all states parties to respect and ensure respect for each of the four Conventions in all circumastances. The Additional Protocol I includes similar wording. This reference to ensuring respect to international humanitarian law is rare in treaty practice making it more than a

68 Draft ATT Geneva Academy Briefing 2, 15. 69 See Malcolm N. Shaw, International Law. New York: Cambridge University Press (2008), 1010-1117. 70 See David J. Harris, Cases and Materials on International Law. London: Sweet & Maxwell (2004), 889. 71 See supra, note 66, para. 292. 72 International Committee of the Red Cross, Arms Transfer Decisions: Applying International Humanitarian Law Criteria. Geneva: International Committee of the Red Cross (2007) , 3, accessed on 16 August 2013, http://www.icrc.org/eng/assets/files/other/icrc_002_0916.pdf.

positive element of the section on principles73. However, the specific wording of 26 July 2012 draft treaty text naming the 'duty to respect' was ameneded in the final text.

The sixth principle contains a powerful, yet very toothless reference to the 'responsibility of all states' to prevent arms diversion and 'primary responsibility of all states in establishing and implementing their respective national control systems'. One interpretation connects this wording with art. 16 of the International Law Commission´s Articles on State Responsibility for Internationally Wrongful Acts74. Thus the responsibility implies a failure of a state to prevent an internationally wrongful act with arms supplies. Art. 5 para. 2 of the ATT is the major embodiment of this principle. The following seventh principle connects the scope of first principle with arms transfers for the purpose of peacekeeping operations. Although principle n. 1 speaks about an 'inherent right of all states to individual or collective self- defence', principle n. 7 uses different and appropriate wording of 'legitimate interests of states to acquire conventional arms to exercise their right to self-defence'75. The 26 July 2012 draft treaty text involved also specific wording of 'legitimate self-defence' thus setting the threshold perhaps to a higher degree for certain use of force. That specification was excluded from the final text. The overal wording of seventh principle originated in General Assembly resolution 64/4876. Phrases 'export' and 'import' seem redundant due to inclusion of 'transfer' within this principle77.

The last principle differs from the 26 July 2012 text in that it excludes phrase 'necessity to implement this treaty'. Nevertheless the current provision still serves its purpose. The normative embodiment of this principle is art. 5 para. 1 and certain aspects of it can be seen in art. 7 of the ATT. The last principle is considered an ambitious attempt to make the treaty appolitical. It is quite unrealistic to expect states to apply the treaty in non-discriminatory manner when they are free to choose whom to sell arms and whom not. The reference to 'consistent' and 'objective' seems more reasonable, for instance with regards to continuous practice of a state party dealing with determination of lawful or unlawful arms transfer based on a national guideline.78

73 Knut Doermann and Louise Arimatsu, Adoption of a Global Arms Trade Treaty: Challenges Ahead. London: Chatman House (2013), accessed on 18 August 2013, 4, http://www.chathamhouse.org/sites/default/files/public/Research/International%20Law/160413s ummary.pdf (hereinafter "Adoption of a Global Arms Trade Treaty: Challenges Ahead"). 74 Draft ATT Geneva Academy Briefing 2, 16. 75 ATT Geneva Academy Briefing 3, 15. 76 See GA Res 64/48, para. 6 of the preamble. 77 Draft ATT Geneva Academy Briefing 2, 17. 78 ATT Geneva Academy Briefing 3, 15.

2.4. The normative text of the treaty

Art. 1 in 26 July 2012 draft called 'Goals and objectives' is now named 'Object and Purpose'. Goals or objectives are not mandatory parts of a treaty. The overall normative effect of art. 1 is unclear. However, the provision might assist in interpretation of other treaty provisions79, for instance with regards to art. 5 para. 1. The object and purpose of the treaty is a result of regular debates during the preparatory committees and the ATT Conferences. While one group pressed for covering only illicit transfers in conventional weapons, the other group was willing to lay the foundations for a regulation of all transfers80. The final text of this provision is lacking a reference to 'illicit market' and 'unathorized end use' with regards to conventional weapons diversion mentioned within the object of the treaty thus indicating the broad interpretation of diversion of arms not only to 'illicit market' or 'unathorized end use'. The debate whether the treaty should use term 'end use' or 'end user' might have contributed to the exclusion of it from the wording of the object of the treaty.

The major discussion throughout the whole drafting process was regarding art. 2 of the ATT. The General Assembly resolution 64/48 did not specify the scope of the upcoming treaty, rather it used a phrase 'the transfer of conventional weapons'81. Such a term would include all weaponry with exception to biological, chemical and nuclear weapons. Unfortunately, the definition of 'conventional weapons' is nowhere to be found in the 26 July 2012 draft nor in the final treaty text82. On the other hand, the treaty covers a wide range of weapons listed in para. 1 of art. 283. Sadly, the 2012 draft text wording 'at a minimum' is excluded from the final text. The formulation proposed by the EU stating 'all conventional weapons including and not limited to the UN register of Conventional Arms' did not find consensus as well84.

79 See VCLT, art. 18, art. 19(c), art. 31 para. 1. 80 Draft ATT Geneva Academy Briefing 2, 19. 81 GA Res 64/48, para. 4. 82 There is no legally binding definition of 'conventional arms' in contemporary international law. 83 See, however, art. 5 para. 3 of the ATT refering to application of the treaty to the 'broadest range of conventional weapons'. 84 Matthew Bolton, ʺFutureproofing the draft Arms Trade Treaty: a policy brief ,̋ ATT Monitor Vol. 6 (2013) No. 5, 3, accessed on 20 August 2013, http://reachingcriticalwill.org/images/documents/Disarmament- fora/att/monitor/ATTMonitor6.5.pdf (hereinafter "Futureproofing the draft Arms Trade Treaty: a policy brief ").

Art. 2 para. 1 covers 7 categories of the UN Register of Conventional Arms85, plus its optional category of small arms and light weapons. The classification under the UN Register of Conventional Arms at the time of entry into force of the ATT serves as basis for further national definitions of the 7 categories86. The same stands for small arms and light weapons, just the source of classification is the 2001 Firearms Protocol87 and the 2005 International Tracing Instrument88. Thus art. 5 para. 3 filled the space for discretion of states, a fear that arose with 26 July 2012 draft text giving no authority to the mentioned documents89. The restrictions and obligations the ATT imposes applies to the 8 categories of art. 2 para. 1. The boiling debate about the inclusion of ammunition and parts and components resulted in art. 6 and 7 of the ATT leaving the scope of the treaty unfortunately without it90.

Another loophole seems to be the rapid development of warfare technology leading to present weaponry like iRobot 710 Warrior or the UAS Advanced Development Switchblade without certainty of being included in the treaty´s scope due to the possibility of being differently classified91. Unlike the final treaty text, the 13 July 2012 committee draft also included a reference to conventional arms considered as systems or platform and the draft explicitly recognized manned and unmanned systems within the treaty´s scope. It seems that only time will reveal if unmanned aerial vehicles are to be classified as a 'combat aircraft' or a 'missile'.92 The Group of Governmental Experts on the UN Register of Conventional Arms however stated that the category of 'combat aircraft' covers both piloted aircraft and unmanned aerial vehicles commonly known as drones93.

Para. 2 of second article defines the term 'international trade'. It covers export, import, transit, trans-shipment and brokering, all referred further in the treaty as 'transfer'. Sadly, the issue of gifts and free loans was not settled and it is still not generally agreed whether the treaty covers also these forms of arms transfer.94

During the drafting process, most of the countries expressed their view that 'trade'

85 See categories of equipment and their definitions under UN Register of Conventional Arms, accessed on 20 August 2013, http://www.un.org/NPT2010/RCA/English/categories.html. 86 ATT, art.5, para. 3. 87 See 2001 Firearms Protocol, art. 3(a). 88 See 2005 International Tracing Instrument, art. 4. 89 See the commentary regarding the 2012 draft treaty text scope in Draft ATT Geneva Academy Briefing 2, 20. 90 Adoption of a Global Arms Trade Treaty: Challenges Ahead, 4. 91 Note that under art. 17 para. 4(a) of the ATT, the Conference of States Parties shall review the implementation of the treaty, 'including developments in the field of conventional arms'. 92 Futureproofing the draft Arms Trade Treaty: a policy brief, 3. 93 ATT Geneva Academy Briefing 3, 19. 94 Ibid., 20.

covers also non-commercial activities like gifts or loans95. However, there is no provision specifying that financial consideration must be involved in the transaction implying the inclusion of arms gifts or loans either abroad, from abroad or by any other means defined in para. 2 as 'international trade'.96 Para. 3 excludes certain arms possession from the treaty´s application. For instance, when arms are used by the state party that remains the owner of arms in case of weaponry sent to its own forces located on a territory of another state. The transfer is only possible in this case when another state gets involved in the transaction by obtaining ownership over those arms.97

As the inclusion of ammunition within art. 2 of ATT failed, mostly because of opposition of the USA and the Russian Federation, certain satisfaction can be found in art. 3. There is an obligation for each state party to establish and maintain a national control system to regulate the export of ammunition and munitions. At the same time the provision states that prohibition of transfer and denial of authorization of proposed export applies to ammunition. One loophole seems to be no general definition of the term 'ammunition' that might lead states parties to certain discretion. A positive intention to cover as much as possible led to inclusion of both terms ammunition and munitions. The only requirement remains that the ammunition or munition must be fired, launched or delivered from any conventional weapon within art. 2 para. 1 of the ATT. For instance bombs, shells, missiles or bullets fall within the provision of art. 3. Uncertainty remains whether manually positioned landmines or hand grenades are also covered. On the other hand, weapons not classified as 'weapons of mass destruction' like tear gas canisters that are launched or fired might fall within the treaty´s restriction as being an ammunition or munition.98

Similar provision on parts and components is included in art. 4. The obligation of all states parties to any treaty to implement its provisions in good faith prohibits a state party from diving the conventional arms listed in art. 2 into separate parts and components and transfer them by separate deliveries. However, art. 4 is not dealing with parts and components of ammunition thus leaving open the possibility of transfering parts of ammunition.99 Para. 1 of art. 5 deals with obligation to implement the treaty in a 'consistent, objective and non-discriminatory manner' connecting the issue with the last principle of the preamble section aiming to avoid political

95 Adoption of a Global Arms Trade Treaty: Challenges Ahead, 4. 96 Draft ATT Geneva Academy Briefing 2, 20. 97 ATT Geneva Academy Briefing 3, 20. 98 Ibid., 21. 99 Ibid.

discretion. Major obligation is established in para. 2 of art. 5. It imposes a requirement to 'establish and maintain a national control system'. There is, however, no unified form for this system thus allowing the states parties to use different forms of control. Para. 5 of the same article only imposes an obligation to designate 'competent national authorities in order to have an effective and transparent national control system'. Sadly, the final treaty text is missing the July 2012 wording imposing an obligation to take 'all measures'. There is also certain overlap with regards to wording of art. 14 of the ATT. The measure within this paragraph might range from adoption of legislation to creation of administrative structures to exchange relevant information with other states.100 Para. 2 also imposes a duty for a state party to 'establish and maintain a national control list'.

Minimum requirements of national definitions of conventional arms under the treaty´s scope are further specified in para. 3 of the same article101. As for the wording 'is encouraged to' that lowers the priority of this obligation, many speakers pressed for the inclusion of stronger wording that would be more appropriate in this case102. The Secretariat established under art. 18 of the ATT is entitled under para. 4 of art. 5 to receive national control lists from states parties. Again, the wording of this provision that refers to public availability of these control lists states no obligation. One interpretation of wording 'pursuant to its national laws' specifies this obligation as a possibility for a state party to keep certain confidential military information away from the control list103. On the other hand, a national legislation can not be used as a justification to refuse to provide the national control list104. To what extend the list will be provided remains unclear. For the purpose of exchanging information on implementation of the ATT, para. 6 of art. 5 imposes an obligation upon each state party to 'designate one or more national points of contract'. Similar provision can be found in the 2001 UN Programme of Action on Small Arms105, in the 2001 Firearms Protocol106 and in the 2005 International Tracing Instrument107.

100 Ibid., 21-23. 101 Note that the provision of art. 5 para. 3 of the ATT refers to 'desciptions used in the United Nations Register of Conventional Arms at the time of entry into force of this treaty' leaving a possibility that the national definitions might remain frozen in time. 102 See Rebecca Gerome, ʺSide event report: What challenges for a robust and strong ATT? ,̋ ATT Monitor Vol. 6 (2013) No. 5, 4, accessed on 20 August 2013, http://reachingcriticalwill.org/images/documents/Disarmament- fora/att/monitor/ATTMonitor6.5.pdf. 103 ATT Geneva Academy Briefing 3, 22. 104 See VCLT, art. 27. 105 See 2001 UN Programme of Action on Small Arms and Light Weapons, art. 2 para.6. 106 See 2001 Firearms Protocol, art. 13, para. 2. 107 See 2005 International Tracing Instrument, para. 25.

The "heart" of the treaty is located in art. 6 dealing with prohibitions. First paragraph refers to denial of authorization of any transfer of conventional arms listed in art. 2 para. 1, ammunition/munition named in art. 3 and parts and components as stated in art. 4 if the transfer in question would violate the state party´s obligations derived from the decisions of the Security Council. Para. 1 names particularly arms embargoes that are considered a partial or complete interruption of economic relations with regards to weapon transfers108. This provision does not impose any new obligation as each UN member state is already obliged to accept and carry out decisions of the Security Council109.

Same obligation with regards to international agreements to which a state is a party is imposed in para. 2. It particularly names the agreements relating to the transfer of conventional arms or illicit trafficking in conventional arms. The 2001 Firearms Protocol does not include a prohibition of trafficking but it requires states parties to criminalize illicit trafficking in firearms, their parts and components and ammunition110. Provision of para. 2, however, does not refer to prohibitions under customary international law. That application continues regardless of the ATT111. Existing international obligations may vary from a state party to another state party. The adopted prohibition of transfer of cluster munition is just one example of such an obligation112.

The paragraph refers to 'relevant international obligations' and includes a phrase 'in particular' implying that the reference to international obligations dealing with transfer of conventional arms or illicit trafficking in conventional arms is only indicative. It seems to follow the wording of principle n. 5 and n. 6 of the preamble. After the General Assembly adopted the ATT, a join declaration of 98 states mentioned that this provision is aimed to cover also general international and regional treaties apart from those dealing with transfer of conventional weapons113. A reference to human rights obligations prohibiting the transfer appeared in the statement of Norway to the General Assembly that also named existence of

108 See Charter of the United Nations, 26 June 1945, art. 41. 109 Ibid., art. 25. 110 See 2001 Firearms Protocol, art. 5. 111 ATT Geneva Academy Briefing 3, 24. 112 See Convention on Cluster Munitions, Dublin, 30 May 2008, art. 1. 113 See A Joint Political Declaration delivered by Mexico, New York, 2 April 2013, available at: http://www.iceland.is/iceland-abroad/un/nyc/statements-and-news/adoption-of-the-arms-trade- treaty---joint-statement/9943/.

obligations prohibiting transfer in case of threat of genocide, crimes against humanity or war crimes114.

Such an interpretation might overlap with wording of para. 3 of art. 6. This provision may be called in a very same way as this paper iself, a promise towards the victims of armed conflicts. The succeess of the ATT will be measured according to implementation of this provision. Para. 3 refers to genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, attacks directed against civilian objects or civilians protected as such and lastly to other war crimes defined by international agreements to which the state party of the ATT is a state party. It would be interesting to see inclusion of aggression within this provision115.

There are 3 categories of war crimes named in para. 3. The unique wording seems to be the phrase 'attacks directed against civilian objects or civilians protected as such' that has no equivalent in international humanitarian law116. The wording 'protected as such' may imply an emphasis to distinguish civilian objects and civilians. Civilians participating in direct hostilities are excludes from protection of this provision117. Last category of war crimes the provision is refering to can be found in international agreements like the 1977 Additional Protocol I118 and the Rome Statute of the International Criminal Court that includes also a definition to already mentioned genocide119 and an indicative or non-exhaustive list of crimes against humanity120.

Unlike the July 2012 draft treaty, a specific reference to serious violations of Common Article 3 to the four Geneva Conventions is missing despite huge efforts of Switzerland to include this wording into para. 3. On 2 April 2013, the day when ATT was adopted, Switzerland made an interpretative declaration stating that 'other war crimes as defined by international agreements to which it is a party' convers also serious violations of Common Article 3 to the 1949 Geneva Conventions. Ireland

114 See statement of Norway to the General Assembly, 2 April 2013, available at: http://www.norway- un.org/Statements/Plenary-Meetings/Historic-Arms-Trade-Treaty-adopted-by-the-General- Assembly-/. 115 Note that Cuba pressed for inclusion of a clear prohibition of arms transfers to states involved in 'aggressive activities' and states taking part in foreign occupation. Many Arab states expressed interest in this approach. 116 See similarity with Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, UNTS 1125, 3, art. 51, para. 2 (hereinafter "1977 Additional Protocol I"). 117 ATT Geneva Academy Briefing 3, 25. 118 See 1977 Additional Protocol I, art. 11 and art. 85. 119 See Rome Statute of the International Criminal Court, Rome, 17 July 1998, UNTS 2187, 3, art. 6. 120 See ibid., art. 7.

expressed its consent with this statement.121 Although it is expected that other countries will express similar position with regards to this wording, the provision would have gained more authority by explicit reference to Common Article 3. The limitation of war crimes categories perhaps originated in the intention of certain states to refer predominantly to universally ratified Geneva Conventions of 1949.122

On the other hand more appropriate wording refering to 'arms or items [that] would be used in the commission' of listed attrocities is now included in para. 3 as opposed to 26 July 2012 draft text that contained the reference to transfer of conventional arms 'for the purpose of facilitating the commission' of genocide, crimes against humanity or war crimes.123 There was a fear that the previous wording was refering to intention of a state party to assist in the commission of those crimes. As Mexico correctly stated, no state would frame a transfer in those terms.124

Art. 7 dealing with export is another provision of major importance. It imposes an obligation upon a state party to take into account the potential that the conventional weapons might be used for the listed consequences. As noted above, it was left open whether gifts can be subsumed under the meaning of 'export'. Nevertheless, with the duty to apply and implement a treaty in good faith (pacta sunt servanda) no state party can avoid its obligations by listing all its transfers as gifts. The first criterion for non-authorization of export is 'contribution to or undermin[ing of] peace and security'. As states in several commentaries, this provision remained a huge loophole during the whole drafting process and remains contentious. The provision does not refer to threats to international peace and security thus allowing a state party to interpret the wording as a threat to its own peace and security. The state party in question could thus legalize an export if it considers contribution to 'peace and security'125. Position of the importing state remains important also in the export assessment as the provision obliges the exporting state to take into account 'information provided by the importing state in accordance with art. 8 para. 1'.

Sub-paragraph (i) of letter (b) deals with ban of the export in case of a 'serious violation of international humanitarian law'. Same wording is used for sub-

121 Adoption of a Global Arms Trade Treaty: Challenges Ahead, 5. 122 International Committee of the Red Cross, ICRC Analysis of Articles 2, 3, 4 and 5 of the July 2012 Draft Arms Trade Treaty. Geneva: International Committee of the Red Cross (2013), 5, accessed on 21 August 2013, http://www.icrc.org/eng/assets/files/2013/icrc-analysis-draft-att.pdf. 123 Note that current wording of art. 6 para. 3 refers to 'knowledge at the time of authorization'. To avoid certain discretion, the Russian Federation proposed inclusion of 'reliable knowledge at the time of authorization'. As for this uncertainty, the President of the 2013 ATT Conference made an explanatory statement that 'knowledge' suggests 'full conviction of the existence being considered'. 124 Draft ATT Geneva Academy Briefing 2, 23. 125 ATT Geneva Academy Briefing 3, 26.

paragraph (ii) refering to 'serious violation of international human rights law'. Certain overlap might be seen with art. 6 para. 3. The ATT, however, states in art. 7 para. 1 that the provisions on export apply only when the prohibition under art. 6 does not take place. The ICRC stated that 'serious violations of international humanitarian law' are at the same time 'war crimes'. More precisely, the term covers grave breaches as specified under the four 1949 Geneva Conventions126, serious violations of Common Article 3 to the 1949 Geneva Conventions, grave breaches as specified under 1977 Additional Protocol I127, war crimes as specified under art. 8 of the ICC Statute and lastly, other war crimes in international and non-international armed conflicts under customary law.128 This reference to 'serious violations of international humanitarian law' seems more appropriate as it is broader than the phrase within art. 6 para. 3 that includes reference to 'war crimes as defined by international agreements' to which the exporting state is a party .129 It implies that the threshold for a banned export is perhaps higher than the one for the prohibited transfer itself.

There is no explanatory note with regards to 'serious violations of international human rights law'. Human rights can be violated by arms on numerous occasions, for instance the right to life breached by assassination, the right to freedom from torture and other forms of cruel, inhuman or degrading treatment or the right to freedom from slavery. Violations of jus cogens norms of human rights law are likely to fall under the scope of 'serious violations of human rights law'. The right to freedom from torture, slavery, enforced dissapearance and arbitrary deprivation of life surely belongs to these norms. Other interpretation refers to violation of fundamental human rights like the right to peaceful assembly that could be breached by a conduct of certain gravity. Connection can also be established with similar phrases like 'gross human rights violations'.130 Binding criterion on 'serious violations of human rights' for the EU member states can be found in the 1998 European Union

126 See Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, 12 August 1949, UNTS 75, art. 50, 51, 130, 147; Geneva Convention for the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea, 12 August 1949, UNTS 75, art. 50, 51, 130, 147; Geneva Convention relative to the treatment of prisoners of war, 12 August 1949, UNTS 75, art. 50, 51, 130, 147; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, UNTS 75, 287, art. 50, 51, 130, 147. 127 See 1977 Additional Protocol I, art. 11 and art. 85. 128 See International Committee of the Red Cross, What are "serious violations of international humanitarian law"? Explanatory Note, New York, 12 July 2012, available at: http://www.icrc.org/eng/assets/files/2012/att-what-are-serious-violations-of-ihl-icrc.pdf. 129 ATT Geneva Academy Briefing 3, 27. 130 Ibid., 27-28.

Code of Conduct on Arms Exports131. Without a clear link to any document within sub-paragraph (ii) there is a threat that states parties will retain discretion with regards to these violations. After all, it is the exporting state in quesion making the final assessment of the export. It might however take into account findings of competent UN bodies or NGOs.

Third sub-paragraph deals with conventional arms used in terrorist offences. It particularly refers to 'act[s] constituting an offence under international conventions or protocols relating to terrorism to which the exporting state is a party'. Apart from regional treaties132, there are numerous multilateral international treaties dealing with this matter133. Subparagraph (iv) sets a denial of export in case the arms in question are likely to be used in transnational organized crime. The provision again refers to international instruments to which an exporting state is a party. The UN Convention against Transnational Organized Crimes134 including its Protocols135 can serve as an example.

Para. 2 of art. 7 imposes an obligation for an exporting state party to consider measures for mitigating risks of undermining peace and security and those threats specified in sub-paragraph (b). The provision names examples of it such as confidence-building measures or jointly developed and agreed programme by the exporting and importing states. Generaly, an exporting state party will be free to decide what measure will be applied. The wording, however, refers to 'consider[ation]' that lowers the priority of this obligation. On the other hand, as both states in question, exporting and importing one will have an interest in positive assessment of the export, it is expected that both states will cooperate on this matter. One may argue that an exporting state with influence in international relations might interfere in domestic efforts of the importing state with regards to intention to get positive assessment at all costs. It is arguable that this possibility will be misused and again discretion of an exporting state party will be applied regardless of the

131 See the guide to criterion two of the European Union Code of Conduct on Arms Export in User´s Guide to the EU Code of Conduct on Arms Exports, Brussels, 3 July 2007, 40. 132 See for instance Council of Europe Convention on the Prevention of Terrorism, Warsaw, 16 May 2005, CETS No. 196. 133 See for instance International Convention for the Suppresion of Terrorist Bombings, New York, 15 December 1997, UNTS 2149, 256. 134 See United Nations Convention against Transnational Organized Crimes, New York, 15 November 2000, UN Doc. A/RES/55/25. 135 See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000, UNTS 2237, 319; Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, New York, 15 November 2000, UNTS 2241, 507; 2001 Firearms Protocol.

obligation to apply the treaty´s provision in objective and non-discriminatory manner. End-user certificates that restrict further export without the consent of the exporting state or post-delivery and post-shipment verifications by the exporting state are only a few examples of possible measures.136

Third paragraph of art. 7 imposes an obligation to not authorize the export after conducting the assessment specified in para. 1 and after considering mitigation measures evaluated with regards to para. 2. The starting word of third paragraph 'if' gives the exporting state a clear discretion for its assessment. The provision at the same time states one important requirement of 'overriding risk of any of the negative consequences in paragraph 1'. Although the term 'overriding' should be interpreted as 'more important than any other consideration', there is a risk that states may interpret this provision broadly. Apart from the unsuccessful proposals during the treaty´s negotiations137, for instance New Zealand stated after the treaty´s adoption that it would interpret the 'overriding' risk as a 'substantial' risk. The problem of this provision is based on the possibility that the expected positive effects of arms transfer with the expected results of mitigation measures may lead to a possitive assessment regardless of the threat of arms misuse in question.138

One example stated by commentaries involves permission of a transfer to an armed non-state actor fighting against the government that commits crimes against humanity or genocide on its territory even though the arms in the possession of the rebels might serve for another violations of international law.139 Such a loophole may even amount to another Syrian scenario. Lichtenstein stated that only negative consequences should be taken into account.140 This interpretation would fill the loophole. It is expected that some states will follow the interpretation proposed by New Zealand. The overall pratical results of application of this provision may however differ from state to state.

Fourth paragraph deals with state party´s obligation to consider the risk of gender-based violence or serious acts of violence against women and children when assessing the export. Again, this provision seems poorly drafted as there is no direct

136 ATT Geneva Academy Briefing 3, 29. 137 Six UN agencies (FAO, OCHA, OHCR, UNICEF, UNDP and UNHCR) pressed for the replacement of 'overriding risk' with 'substantial risk'. 138 Andrew Clapman, ʺThe Arms Trade Treaty: A Call for an Awakening ,̋ European Society of International Law Reflections (ESIL Reflections) Vol. 2, Issue 5, 3-4., http://www.esil- sedi.eu/sites/default/files/Clapham%20Reflection_0.pdf. 139 See further in Draft ATT Geneva Academy Briefing 2, 26. 140 Adoption of a Global Arms Trade Treaty: Challenges Ahead, 5.

obligation of states parties to ban the export if there is a risk of commission of gender-based violence or violence against women and children as opposed to ban of export based on para. 1. On the other hand, many acts of gender-based violence or acts of violence against women and children are covered by serious violations of international humanitarian law and international human rights law. Some states may subsume these acts of violence under terrorist offences or transnational organized crime in accordance with international treaties and protocols to which the state in question is a party.141

Wording of para. 5 seems more clear. Although there is no specification for authorization of export, para. 5 imposes and obligation to deliver export authorizations in a detailed and timely manner. Also there is no need for a printed form. An electronic authorization may be sufficient. The scope of the details should include, inter alia, the type of arms or items exported, the time of export, the recipient state and the state of final destination. Specifying the duties of state agents involved in the export and authorization agreements for the subsequent control by another state party may be of certain importance here. Also temporal validity of the authorization documents seems an obligatory aspect of the documentation as the export without a valid authorization would violate the ATT.142 However, the inclusion of a less effective term 'shall take measures to ensure' rather then simply 'shall ensure' could make this provision a dangerous discretion of an exporting state party143.

Sixth paragraph further deals with cooperation between the exporting and importing states parties. The importing state is entitled to request 'appropriate information about the authorization in question' and each exporting state party is obliged to provide these information. The last part of the provision refering to limitation of these information based on 'national laws, practices or polices' is a necessary indication of each state´s interests in protecting its security or commercial interests. Some of the information to be provided might be the intended route of the export or execution of planned risk mitigation measures.144 As already stated, export authorizations are valid for a certain period of time. Automatic renewal of authorization can occur if changes in circumstances in question does not take place. The last provision of seventh article of the ATT deals with these changes in circumstances of the authorized export. These provision could have been

141 ATT Geneva Academy Briefing 3, 30. 142 Ibid., 31. 143 Draft ATT Geneva Academy Briefing 2, 28. 144 ATT Geneva Academy Briefing 3, 31.

a handbrake for an exporting state party when certain tragic consequences are revealed. Unfortunately, it includes like many other treaty´s provisions less efficient term only 'encouraging' the exporting state party in question to do so.

Import is addressed in art. 8 of the ATT. Para. 1 mirrors the wording of art. 7 para. 1 in that it calls upon importating state party to 'take measures to ensure that appropriate and relevant information' are provided to the exporting state party. It again uses a terminology of only 'tak[ing] measures to ensure' providing information to the exporting state party although it is expected to be within the interests of almost all importing states parties to do so. These information can include general information on the situation in the importing country, information on the situation in the region and information named in the provision as end use or end user documentation.145

Para. 2 imposes and obligation on importing states parties to 'take measures' to allow regulation of import of conventional arms under its jurisdiction. The provision contains a phrase 'where necessary' implying certain level of discretion. There seems to be certain overlap with art. 5 para. 2 imposing an obligation on all states parties to 'establish and maintain a national control system'. The wording of para. 2 of art. 8 differs in that it involves 'may include import systems'. However, reference to 'control' in art. 5 para. 2 may differ from wording of para. 2 of art. 8 dealing with 'regulation'. Para. 2 only refers to conventional arms as specified in art. 2 para. 1 of the ATT without the inclusion of reference to regulation of import of ammunition or parts and components.146 Althouth the reference to 'measures' that are nowhere to be defined implies certain level of discretion, the provision contains a binding terminology of 'shall'147.

Paragraph 3 states a possibility for the importing state party of final destination of the delivery to 'request information from the exporting state party' regarding the authorization in question. Mirrored wording of this provision can be found in art. 7 para. 6. That provision however states that it is the importing state that should make a first step in the form of a 'request'.148

145 Ibid. 146 Ibid., 32. 147 Note that the wording of 26 July 2012 draft treaty text was refering to 'adequate measures' and 'appropriate measures' that would grant states parties even more discretion in interpreting these terms as there was no definition of these terms. 148 ATT Geneva Academy Briefing 3, 32.

Article 9 deals with regulation of transit and trans-shipment. It involves the wording of the 26 July 2012 draft text that used terminology of 'appropriate measures'. However, the previous wording used a specification of these 'appropriate measures' naming 'legislative, administrative and other measures'149. Again, this provision refers to 'regulation' of conventional arms excluding ammunition and parts and components as opposed to 'control' that implies higher level of manipulation with the flow of arms. Reference to 'where necessary' seems to imply no mandatory obligation to regulate arms transit in each case. For instance, a state party might impose a national regulation of transit upon its national export and import control authorities without a need for further regulation of the transit itself. The term 'where feasible' is a reference to vast territories of many states that have difficulties in intercepting every single transit of arms through their territory150. It is especially difficult to monitor the arms flow by air or sea routes. With exercising this sovereign right of every state, this provision of the ATT might possibly clash with other international obligations151.

Not only vast territories are causing problems to state authorities with regards to monitoring of the territory. Brokering, mostly connected with arms flow within state´s jurisdiction, and the obligations of states parties with regards to it are evaluated in art. 10 of the ATT152. The brokering provision is also of importance for those states parties that have not efficient national control systems of export, import or transit making this provision a safeguard for states parties facing enormous illicit arms trade. The provision does not specify the measures required, it only refers to conformity with national laws. 'Brokering' as such is unfortunately not defined in the treaty. The provision of art. 10 refers to 'regulat[ion]' as opposed to 'control' and it lists a few examples of the possible measures, such as registration of brokers and authorization of brokers by obtaining written consent to conduct brokering153. The major loophole of this provision seems to be the exclusion of brokering of ammunition and brokering of parts and components. At the same time, the provision refers to states parties jurisdiction excluding the scope of its application with regards to brokers of state party´s nationality operating outside the jurisdiction of that state party154.

149 Draft ATT Geneva Academy Briefing 2, 30. 150 ATT Geneva Academy Briefing 3, 32. 151 See for instance Convention of the Law of the Sea, Montego Bay, 10 December 1982, UNTS 1833, 3 and Convention on International Civil Aviation, Chicago, 7 December 1944, UNTS 15, 295. 152 See also 2001 Firearms Protocol, art. 15 and 2001 UN Programme of Action on Small Arms and Light Weapons, p. 3, para. 14. 153 Note that there is no obligation to adopt these two measures, although the provision of art. 10 includes an indicative list. 154 ATT Geneva Academy Briefing 3, 33.

Art. 11 further shapes the wording of art. 1 refering to an object of the treaty to 'prevent and eradicate the illicit trade in conventional arms and prevent their diversion'. The provision follows the not very appropriate approach of previous provisions and deals only with arms covered by art. 2 para. 1 of the ATT. First paragraph of art. 11 is very general and without a definition of 'diversion'. Broadly speaking, diversion means transfer of arms to third states, foreign entities or non- state actors without the consent of the exporting state. It is clear from the travaux préparatoires that the intention of states was to cover more than diversion of arms to the illicit market. Without a clear specification of diversion of arms to the illicit markets the provision applies to all means of diversion. The provision does not include an indicative list of the possible measures. They might, however, involve supervision of state authorities holding arms or effective physical security and stockpile management.155

Para. 2 of the diversion article imposes an obligation upon the exporting state to 'seek to prevent the diversion of the transfer of conventional arms' through its national control system. Provision particularly refers to assessment of risk and consideration to implement mitigation measures156. The prevention of diversion is thus connected with export control under art. 7 as specified in the last sentence of para. 2 of art. 11 refering to non-authorization of the export. Inclusion of 'where appropriate' implies again a certain discretion. Regardless of art. 15 on international cooperation and art. 16 on international assistance, art. 11 para. 3 imposes an obligation on importing, transit, trans-shipment and exporting states parties to cooperate and exchange information in order to mitigate the risk of arms diversion. Unlucky terminology of 'where appropriate and feasible' received its place also in this provision. Replacing it with 'to the extent possible' would be a better choice157. Moreover, 'national laws' might limit its application.158

Para. 4 deals with detection of diversion. It refers to states parties in general,

not only states parties of the transaction. An exporting state party may also conduct

155 Ibid., 33-34. 156 The provision states that other prevention measures may include certificates. For instance the Organization for Security and Co-operation in Europe drafted an end user certificate with the aim of adoption by participating states, that is available at : http://www.osce.org/fsc/83178; see also the explanation in Organization for Security and Co-operation in Europe, OSCE Report to the Second Review Conference On the Implementation of the United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. Vienna, 14 August 2012, 8-9, accessed on 25 August 2013, available at : http://www.poa-iss.org/RevCon2/documents/2012-08- 14%20Report%20to%20the%20UN%20on%20SALW%202012.pdf. 157 Draft ATT Geneva Academy Briefing 2, 31. 158 ATT Geneva Academy Briefing 3, 34.

reassessment of the particulat transfer under art. 7 para. 7. The provision lists some possible measures including the follow-up measures like investigation and law enforcement. As for the investigation and law enforcement, inclusion of reference to compliance of the measures with international law seems well drafted taking into account human rights law. Para. 5 further encourages states parties to share relevant information to fight diversion. Indicative list of possible measures is also included within this provision. Under para. 6 the Secretariat established under. art. 18 serves as a bridge for information provided by states parties to other states parties of the ATT. Although the provision only "encourages" states parties to do so, it is expected that obtaining relevant information may be relevant for states parties in practice. Certain overlap of this provision might be seen with the wording of art. 13.159

An important obligation of record keeping for all states parties is established under art. 12 of the ATT. Para. 1 refering to record keeping of issued export authorizations and actual exports of conventional arms uses a terminology of 'shall maintain records' as opposed to para. 2 refering to records of arms transfered to state party that is the final destination or that are authorized to transit or trans-ship territory under state party´s jurisdiction using a less binding phrase 'encourag[ing]' each state party to do so. Para. 1 nevertheless includes a limitation to 'national laws and regulations'. Unfortunately, ammunition and parts and components do not fall under the scope of both paragraphs160.

Para. 3 of art. 12 would be very well drafted without the wording 'encourag[ing]' each state party to keep the listed records. Thus there is no minimum requirement for an arms transfer record161. With the discretion accompanying first three paragraphs of art. 12 there seems to be a realistic threat that the record keeping might not function as intended. The fourth paragraph sets the minimum length for the record keeping to 10 years162.

159 Ibid., 35. 160 The USA pressed for the exclusion of records for ammunition stating that it is not feasible to keep records on ammunition exported as the trade in ammunition anually far exceeds the trade in conventional arms. However, a single licence can serve as an instrument for a large number of rounds of ammunition making the record process of authorizations simply comfortable as the provision of art. 12 para. 1 is drafted alternatively. Thus records of issuance of export authorizations with regards to ammunition will suffice. 161 ATT Geneva Academy Briefing 3, 35. 162 Compare with 2001 Firearms Protocol, art. 15; 2001 UN Programme of Action on Small Arms and Light Weapons, art. 7; 2006 ECOWAS Convention on Small Arms and Light Weapons, art. 9, para. 3; see also 2005 International Tracing Instrument, section IV, para. 12.

Reporting to the Secretariat is also of major importance if the global arms trade aims to function in a transparent way. Art. 13 obliges every state party to provide an initial report of 'measures undertaken in order to implement this treaty'. The time period for this obligation is set within one year after entry into force of the treaty for the particular state party. This time, provision of art. 13 states a mandatory list of measures to be reported, namely 'national laws, national control lists and other regulations and administrative measures'. Any new measures are also to be reported to the Secretariat. The provision, however, states no time period for the report of measures adopted after the first year after entry into force. It only leaves the states parties with a discretion to choose the time of further reports with the reference to 'when appropriate' meaning 'appropriate time for the report'. The Secretariat will then distribute the reports to states parties indicating that certain transparency will be included after all. Unfortunately, it is not clear whether the reports that are to be 'made available' will also be available to public in accordance with this provision.163

Certain form of cooperation is expected in para. 2 of the reporting provision. However, it imposes no obligation upon states parties to share the results of effective measures undertaken to stop the diversion of arms164. Para. 3 includes a sympathetic provision that requires all states parties to submit anual reports of the preceding year´s authorized or actual exports and imports to the Secretariat by 31 May. Ammunition and parts and components are again not covered by this provision. The Secretariat retains same obligation to distribute these reports to the states parties. Unlike the wording of para. 1, no specific requirements of these anual reports are stated. The provision allows to submit the very same information as the states parties submit to relevant United Nations frameworks like the United Nations Register of Conventional Arms165. A potential loophole may be hidden in limitation of these reports with regards to 'commercially sensitive or national security information'.

A tiny provision of art. 14 imposes an obligation upon each state part to 'take apropriate measures to enforce national laws and regulations that implement the provision of this treaty'. This provision establishes a promising obligation that will influence the overall effectiveness of the treaty in practice. It is the responsibility of

163 Draft ATT Geneva Academy Briefing 2, 32. 164 Note that art. 10 para. 3 of 26 July 2012 draft text included a possibility of sharing all measures undertaken to address the diversion, not only the effective measures. The former provision might have contributed to more transparent and trustworthy atmosphere of the global arms trade. 165 See Paul Holtom, Lucie Béraud-Sudreau and Henning Weber, Reporting to the United Nations Register of Conventional Arms. Solna: Stockholm International Peace Research Institute (2011), accessed on 26 August 2013, http://www.nonproliferation.eu/documents/other/8232paulholtomlucieberaudsudreauandhenning weber4e9eb4efefa4e.pdf.

each state party to implement the required measures into their national legal systems. The provision of art. 14 further shapes the general provision of art. 5 on the treaty´s implementation. The enforcement article, however, lacks a reference to penal sanctions. On the other hand is is expected that penal sanctions will be introduced in the national legal systems as private persons are often involved in prohibited activities with regards to arms transfer and their diversion. The provision is nevertheless still too general leaving the states parties with discretion regarding the 'appropriate measures' that are required under this provision.166

The third and final purpose of the treaty listed in art. 1 includes the promotion of cooperation between states parties. Very generally drafted provision of art. 15 para. 1 refers to cooperation between states parties with the aim of effective implementation of the treaty. This wording might imply the involvement of the Secretariat and the Conference of States Parties. Unfortunately there is no universaly binding definition of 'cooperation' in international treaties and none can be found in the ATT. The reference to 'security intrests' seems a necessary evil. Para. 2 and 3 contain an overlaping wording encouraging states parties to 'facilitate international cooperation [...] on matters of mutual interest regarding the implementation and application of this treaty' and to 'consult on matters of mutual interest and to share information [...] to support the implementation of this treaty'. Para. 4 is a connection with art. 11 on diversion. It states a possible measure for cooperation on this matter, such as 'sharing information regarding illicit activities and actors'.

Para. 5 calls for cooperation in 'investigations, prosecutions and judicial proceedings in relation to violations of national measures established pursuant to this treaty', but only upon agreement and in accordance with the national laws of states parties in question. It is expected that this provision will serve as an inspiration for further regional regulations and agreements on this matter. This provision deals particularly with transfers of arms that violate national laws. Brokering is thus covered by this provision.167 Sixth paragraph deals with adopting national measures and cooperation with regards to corruption168. During the treaty negotiations, proposals to include corruption as a justification for a denial of transfer did not find

166 ATT Geneva Academy Briefing 3, 36-37. 167 Ibid., 37. 168 Transparency International estimates the global cost of corruption in defence sector to be a minimum of $20 billion per year. For instance in Decembr 2012 6 employees of a Finish defence group were charged with bribery and corporate espionage in connection with a Slovenian defence contract for armoured vehicles. The prosecution service in Finland stated that the bribes were 10 % of the sale value making it more than €160 million. This led Slovenia to reduce the whole order of 135 vehicles to 30.

consensus. This provision is unfortunately only a leftover of those proposals. Last paragraph of art. 7 encourages states parties to exchange experience and information with regards to previous positive or negative measures that were applied based on any aspect of the treaty. For instance efficiency of national control mechanisms might be shared under this provision.169

Art. 16 deals with 'international assistance'. Para. 1 imposes an obligation upon each state party to provide assistance upon request from a state party. Similar provision is used in several other treaties dealing with transfer of specific weaponry170. The provision includes an indicative list of possible means of assistance, such as 'stockpile management' or 'model legislation'. However, no minimum specification of the assistance provided to requesting state party is defined in the ATT. The phrase 'in a position to do so' is also expected to be interpreted as a ground for refusal to provide assistance in certain situations. Para. 2 states that apart from other subjects, United Nations, international, regional, subregional or national organizations and NGOs may all serve as a channel for providing such an assistance. Reference to bilateral assistance is also included. Third paragraph imposes an obligation to establish a trust fund for assistance to requesting states parties requiring 'international assistance to implement this treaty'. There is, however, no obligation to contribute to this fund.171

169 ATT Geneva Academy Briefing 3, 37. 170 See for instance Anti-Personnel Mines Convention, art. 6; Convention on Cluster Munitions, art. 6. 171 Australia, Germany and the United Nations Programme of Action (UNPoA) have already expressed interest in donating significant ammount of money to this fund.

3. FINAL REMARKS : BRINGING HOPE TO THE DARKEST PLACES OF THE GLOBE

By restricting the transfer of weaponry causing great suffering, the ATT will contribute to the maintenance of international peace and security and will reduce the destructiveness of armed conflicts. It is unpredictable right now to what extent. It would be too comfortable and unrealistic to say that it will take away tears from every child suffering in an armed conflict and that it will bring back colors to dreams of whole generations that are used to inhumanity as the number of loopholes can contribute to its inefficiency. Last but not least it will play a significant role in enforcement of certain values of public international law, inter alia, the cooperation among states, the sovereign equality of states, the principle of non-intervention and the fulfilment of international law obligations in good faith.

It is said that arms control can function properly only if governments are willing to undertake its obligations and can agree on the rules of the game. The same rules of the game that should be enforced before a judicial organ or by a third party dispute resolution. However, it seems unlikely as arms control is a sensible field for most states. Therefore this branch of international law will remain more or less dependent on political will. It will be interesting to watch the steps of the ATT´s destiny with regards to meetings of the Conference of States Parties. With the increasing support to the ATT, reduction of human suffering can become a reality.

The language and wording of the treaty were nevertheless not acceptable to all. It is a compromise taking into account the states´ views on common international standards for the trade in conventional weapons and as the treaty states, 'legitimate political and security interests of states'. Some states even noted during the drafting process that the treaty might cause more damage than benefit with the number of its loopholes. It does not address disarmament, overproduction and overaccumulation of conventional arms even though many states pressed for that. As some say, an imperfect drafting process led to an imperfect treaty. The missing section on definitions and the absence of accountability mechanism for exporting states are indeed huge gaps. On the other hand, the number of more than 20 states not voting in favour of the treaty in the United Nations General Assembly implies that the international community is now perhaps at the promising begining of the marathon run of arms trade regulation. But in case of daily horrors of millions of people around the globe even the slowest runner can bring hope to places where the light of international law is not shining at all. Devotion of whole international community

will thus remain a crucial element in further movement concerning arms trade regulation and its enforcement.