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How to Reach Consensus on an Arms Trade Treaty

Arms Control Now
Andrew Wood

8 Feb 2012| Link to the original article

Since 2006, government representatives to the United Nations have been engaged in progressively wider and deeper discussions toward the negotiation of a treaty to regulate the trade in conventional arms. In 2009 the UN General Assembly decided to convene a conference that established a timetable for crafting an arms trade treaty (ATT), which is to be “a legally binding instrument on the highest-possible common international standards for the transfer of conventional arms.”

 

This decision established a series of four preparatory committee meetings, of which three have been held since 2010. Under the agreed program, there will be a short preparatory committee meeting in February, primarily on procedural issues, and the negotiations will start in July.

This might appear to be a protracted process, but by the standards of multilateral negotiations, the pace has been remarkable. Nevertheless, with only 22 days of talks left, it is time to focus on issues that will increase the prospects for success and determine what a treaty might look like. A key issue in this regard is why the defense industry should be involved in the debate, a point that this article will address in some detail.

The aim of an ATT is to regulate global trade in conventional arms more effectively, not to reduce or to limit the scope for legal trade. The envisioned treaty would represent a new kind of instrument that would not fall neatly into the category of disarmament or arms control.

There is enormous support for an ATT among UN member states. For example, 151 states voted in favor of the last UN resolution on an ATT in 2009. However, the five years of talks have shown that there are probably more than 100 different views of what the treaty should look like. As always in these negotiations, the devil is in the detail. Therefore, a key question for the negotiators is whether it is possible to avoid detail in the text of the treaty.

Prospects for Success

The chair of the process, Ambassador Roberto García Moritán of Argentina, has done a remarkable job in marshaling the discussions, gathering a collection of disparate views into a chairman’s draft that has been circulated to governments and observers in the preparatory committee meetings. He has said clearly and repeatedly that this is not a draft treaty text; indeed, it carries no formal status. Yet, that does not stop many people from thinking or claiming otherwise. That view needs to be dispelled. In the UN, such misconceptions often lead to considerable time being lost down rabbit holes.

Distilling from the draft text the elements that will constitute a strong, effective, and implementable treaty remains a significant challenge. Arguably, 70 to 80 percent of the issues are close to agreement; it is the remaining 20 to 30 percent that will lead to some late nights at the UN. Before addressing these issues, however, the delegates most likely will have to overcome some procedural obstacles.

During preparation of the 2009 resolution, a tremendous amount of heat, but little light, was generated in a debate over whether the negotiating conference should be undertaken on the basis of consensus. Following U.S. votes against ATT resolutions in 2006 and 2008, the need for consensus was a critical element in obtaining a new U.S. position of support. Some long-standing advocates and observers felt this price was too high, arguing that it may give states the ability to stall negotiations and dilute the final treaty. Nevertheless, having the United States, the largest exporter of conventional arms, positively engaged in the process was and remains vital to its success.

Clearly, the change of administration in the United States and the resulting desire to engage in a multilateral process alongside some of its closest allies and friends were major factors in the change of U.S. position. Yet, other factors also were important. First, a treaty in some form is likely to be concluded, if not in 2012, very soon after. Quite rightly, Washington wants to make sure the treaty does not undermine U.S. objectives: preventing arms from falling into the hands of those that would threaten its homeland, its military overseas, or its friends and allies. A weak treaty also could provide a fig leaf for governments less willing to address the need for responsible controls on arms exports, undermining years of efforts to deal with states that proliferate or divert arms.

Second, the United States needs to be at the table to protect its interests. Actively participating in the negotiation gives it the chance to promote the export control agenda that it has pursued since the early days of the Cold War, an agenda that focuses on promoting national responsibility and accountability for transfers. Moreover, once a treaty is completed, a state that is not a signatory will not have a place in meetings of states-parties that would define future implementation and adaptation of a treaty.

Other significant players such as China and Russia, which both had abstained on the 2009 resolution, now have taken a role alongside the United States, albeit from slightly different positions. Both had remained skeptical of the need for a treaty. One of the most significant breakthroughs came last July during the third preparatory committee meeting. The five permanent members of the UN Security Council—China, France, Russia, the United Kingdom, and the United States, known as the P5—made a joint statement supporting the efforts aimed at establishing an “international instrument.” This choice of words was notable because an international instrument could be a document that is politically but not legally binding and therefore would be viewed by many as much weaker than a treaty. Perhaps this reflected remaining reservations on the part of China and Russia about the scope and purpose of any treaty as it did not entirely reflect the mainstream view in support of a comprehensive, legally binding treaty establishing the highest-possible common international standards for the transfer of conventional arms.

A consensus rule certainly helped to bring three of the largest arms traders—China, Russia, and the United States—to the table. Crucially, however, with Washington now at the table, actively pursuing a strong and robust treaty, it was perhaps unrealistic for Beijing and Moscow to continue to abstain.

It remains unclear whether the shift by China and Russia makes consensus more likely. Achieving consensus largely depends on a text the P5 can accept, as those five states represent the preponderance of the export and import trade in conventional arms. Nevertheless, they are not the only players in a process that must be open and transparent and take full account of the views of all member states. To have a significant treaty supported by a broad range of states will require compromise from all. There remains a critical need for a dialogue among proponents, the P5, and those less convinced of the need or feasibility of a treaty.

Industry Involvement Needed

As momentum builds in the diplomatic process toward the July conference, discussion now also must focus on practical aspects of the treaty’s scope and implementation. Creating idealistic or compromise language that fails to take account of the practical aspects of implementation will critically undermine the treaty’s longer-term success. Industry has an important role to play.

Governments and nongovernmental organizations (NGOs) sometimes do not fully understand the enormous scale and complexity of the global supply chain in defense goods and technology. From its experience in this area, the defense industry understands the dynamics and the practicalities, including the negative effects that could result from imprudent language that is impractical to implement. Along with governments, industry will be one of the major stakeholders in the treaty, the ones who will be most directly affected by its implementation.

The few industry representatives that have attended recent preparatory committee meetings have noted with some concern an absence of such expertise. The fact that the ATT process was established and subsequently developed within the UN General Assembly’s First Committee, the body that deals with disarmament and international security, has meant that an ATT is viewed through a disarmament lens and is being negotiated by disarmament diplomats. Although there was no other UN forum in which it could reasonably be discussed, the disarmament and arms control label is distinctly unhelpful.

It is both natural and essential that industry in all regions and of all views be involved. A number of the delegations and García Moritán are now calling for the close involvement of industry.

Perhaps because of a lack of clarity about the nature of an ATT, with the exception of some European companies, the larger aerospace and defense industry has been unaware of a process that could have a significant impact on its business. It also is possible that many merely thought the UN process would not progress as fast as it has. Some in the U.S. industry believed there was little chance in the early stages of the U.S. government signing a treaty, even if one emerged. British industry’s discussions with its overseas partners underscored this point, but many U.S. companies were simply unaware of an ATT as an issue.

This is not entirely industry’s own fault. Without government outreach to industry, the labyrinthine processes of the UN, involving resolutions, groups of governmental experts, open-ended working groups, and preparatory committees, is remarkably opaque to outsiders, and the potential implications often remain remote.

One exception to this lack of awareness was in the firearms industry. That sector has been sensitized to UN processes, often with a real fear that these would threaten or undermine its business. Such fears arose most notably in connection with the UN “Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects” in 2001. Alongside the firearms industry stood the sports shooting community, which also perceived real threats to its interests. At the time and on that specific initiative, some of those concerns probably were reasonable.

In the context of an ATT, these concerns swept in at a very early stage. Clearly, small arms and light weapons were on the agenda as they form part of a broad menu of conventional arms that would be discussed. Many states, particularly in Africa, attach the highest importance to issues of small arms and light weapons. This is entirely understandable as they are most affected by the proliferation of such weapons. They viewed an ATT as a means to address what they saw as failures by or omissions from the UN program of action process. Issues relating to small arms and light weapons became a dominant part of the early ATT discussions. As a result, the legacy concerns of the firearms industry and sports shooting community were resurrected. Regrettably, this has been erroneously skewed toward an unhelpful exchange between proponents of an ATT—governments and NGOs—on one side and those representing the sports shooting and civilian gun ownership community on the other. Calls from some states and a majority of NGOs to have the broadest possible definition of small arms and light weapons, including civilian firearms, have merely fueled that debate. This perpetuates the erroneous perception that an ATT is focused primarily on these weapons. More narrowly but no less importantly, the sports shooting community fears that issues of transfers within national borders and private ownership will be included in an ATT’s scope. Both of these fears should have been allayed. As the report of the 2008 UN group of governmental experts on an ATT concluded,

It was also mentioned that, were an arms trade treaty to be considered feasible, it would need to reflect respect for the sovereignty of every State, without interfering in the internal affairs of States or their constitutional provisions, and respect for their territorial integrity. Exclusively internal transfers or national ownership provisions, including national constitutional protections on private ownership within that State’s territory, should not fall under an arms trade treaty.

That redline remains for many states, including many proponents such as the United Kingdom, and certainly for the United States. Because decisions must be made by consensus, any perceived encroachments on constitutional rights can easily be prevented.

Furthermore, it is important to note the global object and purpose of a future ATT. Issues of civilian ownership and sports shooting, important though they are in their context, simply have no place in an ATT. It would be a shame if this debate, over an issue explicitly ruled out at the earliest stage and reaffirmed in the 2009 resolution establishing the negotiating conference, were able to continue sucking oxygen from the broader debate over the trade in conventional arms. One effect of the debate over small arms and light weapons is that it prevents the voice of the larger aerospace and defense industry community from being heard

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