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THE ARMS TRADE TREATY: ACHIEVEMENTS, FAILINGS, FUTURE

Published online by Cambridge University Press:  21 July 2015

Laurence Lustgarten
Laurence Lustgarten*
Affiliation:
Centre for Socio-Legal Studies, Oxford University, [email protected].
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Abstract

This article looks at the origins, purposes and conflicts of national interests and policies that were the primary influences in shaping the substance of the Arms Trade Treaty, which came into force at the end of 2014. It then proceeds to a more legally focussed analysis and, having identified several important issues which have had to remain undiscussed, concentrates on detailed examination and evaluation of the most important provisions of substance. These are firstly the scope of the Treaty—defining the equipment or materiel covered (Article 2). There follows analysis of the provisions which contain the obligations on exporting States, ranging from absolute prohibitions (Article 6) to ‘export assessments’ (Article 7), which in practice will be the most frequently applicable. The paper concludes by identifying several valuable provisions in the Treaty whilst also highlighting several significant weaknesses and omissions. It contends that evaluation of the Treaty's likely contribution to controlling the recognized evils of the arms trade is premature at this stage and, further, that efforts towards that end must focus on the practice and law of domestic administrative implementation, rather than international law.

Keywords

arms tradearms trade treatyexport assessmentsexport prohibitionssmall arms and light weapons (SALW)
Type
Articles
Information
International & Comparative Law Quarterly , Volume 64 , Issue 3 , July 2015 , pp. 569 - 600
Copyright
Copyright © British Institute of International and Comparative Law 2015 

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References

1 The Resolution is A/67/L.58 (2013).

2 The same three States blocked the adoption of the Treaty by consensus at the Final UN Conference on the Arms Trade Treaty which finished its deliberations the previous week.

3 See further section III.

4 Bacteriological and Biological Weapons were addressed in Convention of 1972; the Chemical Weapons Convention was open for signature in 1992; the Cluster Munitions Convention (CCM) was signed in 2008; the USA has refused to sign, let alone ratify, the latter.

5 And, of course, is supposed to be restricted by anti-proliferation agreements, notably the 1968 Nuclear Non-Proliferation Treaty. This is not the place to explore the role of the superpowers in assisting Israel and India to acquire nuclear weapons, let alone the story of Pakistan's acquisition.

6 ATT art 22.

7 The Cold War vocabulary of ‘East’ and ‘West’ has long ceased to describe real global political or economic divisions. I have therefore adopted the newer and somewhat more accurate terminology of Global North and South.

8 In a speech delivered to the UN Millennium Summit in 2000, quoted in M Bourne, Arming Conflict: The Proliferation of Small Arms (Palgrave Macmillan 2007) 3.

9 Contained in a Report of the Panel of Governmental Experts on Small Arms, A/52/298, presented to the UN General Assembly 27 August 1997.

10 Quoted in R Stohl et al., The Small Arms Trade (Oneworld Publications 2007) 39.

11 This is not to ignore the importance of ‘leakages’ from State arms holdings and illicit trafficking within the continent. See further Jackson, T, ‘From under Their Noses: Rebel Groups' Arms Acquisitions and the Importance of Leakages from State Stockpiles’ (2010) 11 International Studies Perspectives 131CrossRefGoogle Scholar.

12 For description and analysis of the EU system, which is supposed to guide export licensing decisions of all Member States, see Lustgarten, L, ‘The European Union, the Member States and the Arms Trade: A Study in Law and Policy’ (2013) 38 ELRev 521Google Scholar. For a valuable empirical analysis of its workings, see A Vranckx (ed), Rhetoric or Restraint? Trade in Military Equipment under the EU Transfer Control System (Academia Press 2010), a Report prepared for the EU Presidency. For a description of the US system, see M Schroeder and R Stohl, ‘US Export Controls’ in SIPRI Yearbook 2005 (OUP 2005) App 17A.

13 See especially two articles by Kinsella, D, ‘Arms Transfer Dependence and Foreign Policy Conflict’ (1998) 35 JPeaceRes 7Google Scholar and ‘Conflict in Context: Arms Transfers and Third World Rivalries during the Cold War’ (1994) 38 AJPS 557Google Scholar. The latter article, at 558, reports and summarizes several other studies covering the same period, and notes that they establish no clear conclusion about the relationship. Sanjian, G, ‘Promoting Stability or Instability? Arms Transfers and Regional Rivalries, 1950–1991’ (1999) 43 International Studies Quarterly 641CrossRefGoogle Scholar similarly shows the impossibility of drawing firm general conclusions about impact.

14 Sir Richard Scott, Report of the Inquiry into the Export of Defence Equipment and Dual-Use Goods to Iraq and Related Prosecution, HC 115 (1995–96). For analysis, see Leigh, I and Lustgarten, L, ‘Five Volumes in Search of Accountability: The Scott Report’ (1996) 59 MLR 695CrossRefGoogle Scholar; A Tomkins, The Constitution after Scott (OUP 1998).

15 The term used in ATT art 7. l(b)(iv), following the UN Convention on TOC adopted by General Assembly Resolution 55/25 of 15 November 2000.

16 See generally B Saul, Defining Terrorism in International Law (OUP 2006). Recent diplomatic attempts in this direction have proven equally fruitless.

17 See Section IVB.4.

18 It was expounded most fully by the late Joe Roeber, a Financial Times journalist who later worked with Transparency International's anti-corruption projects. His argument appeared in compressed form as part of a more general analysis of corruption in the arms trade that appeared in the UK political journal Prospect: J Roeber, ‘Hardwired for Corruption’ Prospect Special Report No 113 (2005). His more detailed cases studies were unable to be published due to the threat of libel proceedings. See also his earlier work, J Roeber, The Hidden Market: The Effects of Corruption in the International Arms Trade (New Press 2001).

19 The most comprehensive study is that of A Feinstein, The Shadow World: Inside the Global Arms Trade (Penguin 2012). A more analytically focused paper, which distils material from his work on South Africa, is A Feinstein, P Holden and B Pace, ‘Corruption and the Arms Trade: Sins of Commission’ SIPRI Yearbook 2011 (OUP 2011) ch 1.

20 Most notoriously in the case of jet fighters bought at enormous cost by Saudi Arabia from the USA, which Saudi pilots proved incapable of controlling during the first Gulf War in 1991.

21 See, in addition to the material cited in n 14, Lustgarten, L, ‘The Arms Trade and the Constitution: Beyond the Scott Report’ (1998) 61 MLR 499CrossRefGoogle Scholar and R (on Application of Cornerhouse Research) v Director of the Serious Fraud Office [2008] UKHL 60.

22 Most obviously, the connection is absent in the cases of Saudi Arabia and some of the Gulf States, where corruption in arms purchases has been rife, but which in terms of GDP per head of population are quite wealthy.

23 Council Common Position 2008/944/CFSP, defining common rules governing control of exports of military equipment and technology, OJ L 335, 8 December 2008, art 2, para 8.2. See further Lustgarten (n 12).

24 See section VII.

25 See especially D Garcia, Disarmament Diplomacy and Human Security (Routledge 2011) ch 2, for a valuable general account. The important role of NGOs is described in a background paper for an EU-UNIDIR (United Nations Institute for Disarmament Research) project, D Mack and B Wood, ‘Civil Society and the Drive towards an Arms Trade Treaty’ (2010) <http://www.unidir.org/Search?keyword=d.+mack+and+b.+wood>. The views of nearly 100 States involved in the extensive discussions in the mid-2000s were collated and analysed in two reports for UNIDIR prepared by Sarah Parker, ‘Analysis of States’ Views on an Arms Trade Treaty’ (October 2007) <http://www.unidir.org/programmes/process-and-practice/analysis-of-states-views-on-an-arms-trade-treaty> and ‘Implications of States’ Views on an Arms Trade Treaty’ (January 2008) <http://www.unidir.org/Search?keyword=sarah+parker+implications>.

26 UN GA 61/89, 6 December 2006.

27 The first two days of the Conference were sidetracked by controversy over the presence of Palestinian representatives, who were eventually granted observer status. The Vatican, though not a UN member, did participate in the discussions but did not vote. The same was true of the European Union.

28 The UN has published no official record of either Negotiation Conference, which consisted of both open and closed sessions. In its account of the positions taken by various States or regional groups, this article draws extensively from three sources. Most extensive, covering both 2012 and 2013 both with daily blogs and extreme comprehensive analysis, is the material available on the website of Reaching Critical Will, an NGO devoted to disarmament. A complete archive is available at <http://www.reachingcriticalwill.org/disarmament-fora/att>. A second important source is an account issued by the UN Department of Public Information 2 April 2013, GA/11354, summarizing statements made by scores of Member States in the run-up to the Assembly's approval of the Treaty.

29 Russia, Cuba, Venezuela and DPR Korea.

30 The politics of the United States' role requires special attention because of its pre-eminent global power and the fact that the USA is the world's largest arms exporter. The internal opposition is based on exaggerated claims about danger to the Second Amendment constitutional ‘right to bear arms’. In fact the Treaty recognizes in three separate places ‘the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system’ (Preamble, para 5); ‘the legitimate trade and law ownership, and use of certain conventional arms’ for diverse purposes (ibid, para 13) and reiterates in the statement of Principles ‘Non-intervention in matters which are essentially with the domestic jurisdiction of any State in accordance with Article 2(7) of the UN Charter’.

31 The reasons for the replacement of Robert Garcia Moritán were never made public.

32 China, India, Indonesia, Russia and Egypt were the most populous of this group.

33 In addition to Egypt and Yemen, Saudi Arabia, Oman, Bahrain, Kuwait, Qatar all abstained. Venezuela, was recorded as ‘absent’, but later stated it wished to abstain. Of the oil sheikdoms, only United Arab Emirates voted in support.

34 Bolivia, Cuba, Ecuador, and Nicaragua, in addition to Venezuela.

35 As reported in the Financial Times China, 18 March 2013, using data from SIPRI, China is now the world's fifth largest arms exporter <http://www.ft.com/cms/s/0/c7215936-8f64-11e2-a39b-00144feabdc0.html#axzz2Unn9tRyi>.

36 India imported more than double the value of weapons purchased by the second-ranking State (Pakistan) in the period 2009–12. See the SIPRI Database <http://armstrade.sipri.org/armstrade/html/export_toplist.php>.

37 India was perhaps the most vocal in expressing this view, but it had considerable support among the abstaining States.

38 US Department of State, ‘Elements of an Arms Trade Treaty’, Fact Sheet issued 4 June 2010, [hereafter called ‘USA redlines’] which included a bullet point listing of key US objectives, policies and the ‘redlines’. As the only Superpower and also the world's largest arms exporter, the USA is powerful enough to ensure that its ‘redlines’ were respected. Other States were forced to compromise.

39 This is true particularly of the controversy over the treatment of ammunition; see section IVB.4.

40 ATT art 2.2. ‘Transit’ means the export of equipment from one country through the territory of one or more intermediary country to reach the ultimate recipient country. ‘Trans-shipment’ is the physical process of unloading the goods at the initial destination then reloading them, usually via another form of transport [eg from ship to lorries] for trafficking to the final recipient.

41 ATT art 2.3.

42 There is no loophole here allowing a State to lend equipment to an ally whilst retaining ownership; art 2.3. requires that the movement of arms be for ‘its’, ie, the State's, own use.

43 Particularly during the Cold War, the USA operated several programmes involving non-commercial sales to ‘deserving’ countries; until the 1980s this was the predominant method of its arms transfers. This approach now operates particularly as part of ‘counter-terrorism’ policy; particularly important at present is the so-called ‘section 1206 authority’ for training and equipping foreign military forces for this purpose. For details, see NM Serafino, ‘Security Assistance Reform: “Section 1206” Background and Issues for Congress' (Congressional Research Service 2014). The UK acts similarly, albeit on a smaller scale. Annual Reports of the UK House of Commons Committees on Arms Export Controls, cited throughout this article, contain a section on ‘Gifted Equipment’ detailing which nations have received what largesse from the UK during the previous year. On 9 September 2014, the UK announced that it was ‘gifting’ the Iraqi and Kurdish Regional governments £1.6 million of machine guns and ammunition to assist their fight against the Islamic State.

44 See (n 40).

45 See the analysis of the German government, produced by the Federal Foreign Office, ‘Memorandum of the Federal Government on the Arms Trade Treaty’, unofficial translation of 1 March 2014, at 6.

46 The July 2012 text included the phrase ‘at a minimum’ at this precise point. This caused confusion and controversy, and was omitted from the final document.

47 Category h of the final [2013] text, a combination of Categories h and i of the Chairman's Draft of 2011.

48 In the Working Group discussions in the years preceding the 2012 Conference they become known as ‘7 + 1’.

49 The UNROCA list may be found at <http://www.un-register.org/Background/Index.aspx>. As was pointed out in a valuable pamphlet produced by SAFERWORLD, the list was not compiled primarily for purposes of arms control. The aim was to increase public knowledge of the transfers of the sort of heavy weaponry that had been used in the First Gulf War, in hope of preventing secret and therefore destabilizing regional build-ups. See SAFERWORLD, ‘The Arms Trade Treaty and Military Equipment’ (2009) and also Holtom, P, ‘Nothing to Report: The Lost Promise of the UN Register of Conventional Arms’ (2010) 31 Contemporary Security Policy 61CrossRefGoogle Scholar.

50 Nairobi Protocol for the Prevention, Control, and Reduction of SALW in the Great Lakes Region and the Horn of Africa (2004) art 1.

51 eg in the SAFERWORLD Module designed for teaching diplomats, NGO workers and others about SALW: see <http://www.saferworld.org.uk/resources/view-resource/713-small-arms-and-light-weapons-control>.

52 See (n 9).

53 (Note 9), para 26(c)iv and v. ‘Landmines’ would appear to exclude naval mines, though that has not been an issue of much concern.

54 See section IVB.4.

55 Anything with a standard displacement of less than 500 metric tons is outside the definition of ‘warship’ in the UN Register.

56 The CAEC is a unique body in the UK Parliament, comprised of MPs drawn from four other related Standing Committees—Defence, Foreign Affairs, International Development and Business Innovation and Skills [ie Trade]—which monitors and reports on UK arms export policy and administration. The Report which most fully discussed the issue, HC 419, published 13 July 2012, is found at <http://www.publications.parliament.uk/pa/cm201213/cmselect/cmquad/419/41902.htm>. The subsequent Report, HC 205, published 17 July 2013, is most conveniently accessed at <http://www.publications.parliament.uk/pa/cm201314/cmselect/cmquad/205/205.pdf>.

57 ‘Trade in Spy Systems Must Be Reviewed Says Committee Chair’, Guardian (London), 19 November 2013.

58 The membership, reflecting its origins in the 1990s, is very US- and Euro-centric. South Africa has joined, but newer arms exporting States, most notably China but also Brazil, have not.

59 For details, see the summary produced by the Stanford Law School Center for Internet and Society (15 January 2014) <http://cyberlaw.stanford.edu/publications/changes-export-control-arrangement-apply-computer-exploits-and-more>. It should be noted that the UK, like all EU Member States, regulates the export of dual-use goods pursuant to Reg 428/2009, [2009] OJ L 134/1 (Dual-Use Regulation). The categories of controlled materiel are periodically updated, mostly recently in 2012.

60 See the material cited in (n 14).

61 ATT art 20.1.

62 Stated repeatedly: in the Preamble and the Principles in the chapeau, and in art 7.1.ii.

63 The treatment of parts and components of conventional arms was debated and determined alongside ammunition; the latter however was the focus of the bitter controversy. Therefore all discussion of the former in this article applies equally to parts and components.

64 As well as the EU itself, which had separate representation and participated fully.

65 And also Syria and the Sudan, not the most sought-after supporters.

66 A Ghanaian diplomat described the treatment of ammunition as including the football player but not the ball.

67 This figure does not include any hardware held by the armed forces or police. Its source is a Report prepared by the Congressional Research Service, ‘Gun Control Legislation’ (14 November 2012) 8.

68 These figures, drawn from US Department of Commerce data, appeared in an online commentary from a conservative political website: M Bastasch, ‘Foreign Ammo Imports doubled in 2013 to meet exploding US demand’, The Daily Caller, 8 May 2013. Though the publishers are a political group opposed to gun control, the article was not concerned with public policy, but rather with the scarcity of ammunition for United States gun owners.

69 ‘Marking’ requires manufacturers of weapons to imprint their name, country and an identifying numeric code on each weapon. The purpose is to facilitate ‘tracing’—discovering the route by which weapons found in conflict zones arrived there, which often means following a trail of diversion from the nominal initial purchaser.

70 The weight of the burden can be exaggerated. The record-keeping requirements of art 12 are more demanding with respect to exports—‘Each State Party shall maintain national records … of its issuance of export authorizations or its actual exports’ (art 12.1) whereas State Party importers are only ‘encouraged’ to keep records on conventional arms transferred to its territory or trans-shipped across it (art 12.2) emphasis added. This appears to give great leeway with respect to both the enactment and specific measures of compliance.

71 See (n 40).

72 The Treaty does not contain a definitional section, so the commonly accepted meaning of the term must apply. Diversion is understood to mean that the initial purchaser does not have permanent possession of the item, which is transferred to a third party.

73 ATT art 11.

74 The United States negotiators laid particular emphasis on the practical difficulties of monitoring the end use of ammunition exports. See the remarks reported at <http://www.armscontrol.org/act/2012_05/Hurdles_for_Arms_Trade_Treaty_Underscored>.

75 There has never been any serious likelihood that the constitutional requirement that two-thirds of the Senate would approval ratification of the Treaty; the major question has always been whether the US would even sign it. This it did in September 2013.

76 Parts and components of weaponry are treated identically to ammunition throughout the Treaty, though initially mentioned separately in art 4. Therefore everything stated herein about ammunition applies across the board to parts and components, which will not be mentioned further.

77 Ammunition is also excluded from the rather weak provision on brokering, found in art 10, which adjures States Party to regulate brokering but leaves specific measures entirely to their discretion. The importance of this exclusion is unclear, since the weapons that fire the ammunition remain fully covered. (The same is true of art 9 on transit and trans-shipment). This merely illustrates the strange compromise that the Treaty negotiations produced.

78 Preamble, para 12, original italics.

79 Common Military List of the European Union, [2011] OJ C86, ML 3.

80 See further below in this section, discussing prohibitions relating to genocide and crimes and against humanity. These are now regarded as part of customary international law, as their inclusion among the offences in the Rome Statute on the ICC indicates.

81 The text may be found at <https://treaties.un.org/doc/source/RecentTexts/18-12_c_E.pdf>.

82 The list of signatories and adherents to the Protocol may be found at <http://www.unodc.org/unodc/en/treaties/CTOC/countrylist-firearmsprotocol.html>. This overwhelming lack of adherence makes it appropriate to describe the ATT as the first truly global attempt at conventional arms trade control, but the Protocol has served as a useful stepping stone.

83 eg the Kinshasa Protocol on SALW, agreed by 11 States of central Africa and opened for signature in November 2010 but not yet in force, closely tracks the text of the Nairobi Protocol. A more limited instrument exists for the Western Hemisphere: 33 States have signed the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, which came into force in 1998. As the title suggests, it does not cover SALW, but does cover ammunition, [and, surprisingly, the USA is a Party]. The text of these instruments may be found on the website of the UN Office for Disarmament Affairs, <http://www.un.org/disarmament/HomePage/treaty/treaties.shtml>.

84 Two are mentioned explicitly in the Preamble, para 8: the UN Programme of Action against ‘illicit’ trade in SALW, adopted in 2001, and the International Instrument adopted by the General Assembly 8 December 2005 to facilitate tracing illicit SALW.

85 See the statements cited in Geneva Academy of International Humanitarian Law and Human Rights, Academy Briefing No 3 (May 2013) 24.

86 The sole prohibited transfers under art 3.3 were those ‘for the purpose of facilitating’ enumerated major violations. This would have in effect required that the supplier of equipment be an active accomplice, and would have had made the ban virtually inapplicable.

87 International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentary, <http://legal.un.org/ilc/texts/9_6.htm>; Commentary to Article 2, 34–5.

88 The Rome Statute on the ICC does not avoid this problem. Its treatment of the ‘mental element’ in art 30.3 defines knowledge as ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’. ‘Awareness’ implies a subjective test. The decision of Pre-Trial Chamber I in the Lubanga Case, 29 January 2007, merely adds to the complexity and confusion.

89 To take, of many possible examples, a regional, European one: Directive 2003/6/EC on insider dealing and market manipulation (market abuse), OJ L 96/16, 12 April 2003, art 4, requires that Member States enact legislation incorporating this standard.

90 A more rigorous formulation would be ‘that there is a reasonable likelihood’ that the weapons would be used for the various unlawful purposes. Both would embody an objective test, but ‘likelihood’ rather than ‘cause to believe’ would compel officials deciding whether to impose a ban to scrutinize more intensively the situation(s) in which the purchaser would find the equipment useful in the short or medium term.

91 The discussion was cast in terms of knowledge versus intent, and the present language is an advance on the ‘for the purpose of’ formulation that appeared in the first draft (see n 91 above), but with the focus on this issue the ambiguities of simple ‘knowledge’ were not considered.

92 House of Commons [UK], Committees on Armed Export Controls, First Report, ‘Scrutiny of Arms Exports and Arms Controls (2014) para 167, available at <http://www.publications.parliament.uk/pa/cm201415/cmselect/cmquad/186/18605.htm#note3>.

93 ATT art 7.7.

94 Convention on the Prevention and Punishment of the Crime of Genocide 1948.

95 eg the International Criminal Tribunal for the Former Yugoslavia (ICTY).

96 ICC Statute, art 7(1).

97 These are itemized on the ICRC website: <www.icrc.org/eng/resources/documents/misc/5zmgf9.htm>.

98 The United States and Israel, in particular, have not signed the 1977 Additional Protocols, and have stated that they reject the ICRC interpretation of civilian status and do not regard the Additional Protocols as an accurate statement of customary international law. Their understanding of civilian status is much narrower. (Other non-signatories include India, Pakistan and Sri Lanka.)

99 The main provisions of art 7.1 are reproduced in (n 111).

100 In the list of Principles in the Chapeau; in art 5.1, entitled ‘General Implementation’ where it is the first listed requirement, and in the beginning of art 7.

101 See the statements of participating States in the General Assembly when the Treaty was approved on 2 April 2013, cited in (n 30). Approximately a dozen States expressed this position in various ways.

102 Vranckx (n 12). An earlier study, Bromley, M and Brozska, M, ‘Towards a Common, Restrictive EU Arms Export Policy?’ (2008) 13 EFARev 333Google Scholar, found significant variations between EU Member States, under the broadly similar EU Criteria then in force.

103 An example involving severe human rights violations occurred in 2012. The Child Soldiers Prevention Act of 2008 prohibits the sale of arms to States that victimize children in this way. However, if the President determines that it is in US ‘national interest’ to continue to equip those States, Section 404(a) of that Act allows him to ‘waive’ the ban by issuing a ‘Presidential Determination’. President Obama issued such an Order with respect to Libya, South Sudan, and Yemen on 28 September 2012, which took the form of a Memorandum for the Secretary of State to submit to Congress. Accessible at <https://www.whitehouse.gov/the-press-office/2012/09/28/presidential-memorandum-presidential-determination-respect-child-soldier>.

104 See (n 40).

105 The key provisions of art 7.1 read, in relevant part, as follows:

If the export is not prohibited under Article 6, [exporting States] prior to authorization of the export of [conventional arms or ammunition] shall, in an objective and non-discriminatory manner, taking into account relevant factors … assess the potential that the [equipment]

  1. (a)

    (a) would contribute to or undermine peace and security;

  2. (b)

    (b) could be used to [commit or facilitate the following acts]:

  1. (i)

    (i) a serious violation of international humanitarian law;

  2. (ii)

    (ii) a serious violation of international human rights law;

  3. (iii)

    (iii) an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party; or

  4. (iv)

    (iv) an act constituting an offence under international conventions or protocols relating to [TOC] to which the exporting State is a Party.

106 Israel (in relation to Arab States), Saudi Arabia (v Iran), Pakistan (v India), India (v China) are but a few, which refer to US arms sales. In most cases Russia and other arms suppliers have offered precisely the same justification for sales to other side.

107 It appeared in art 4.1 of the 2012 Draft and remained throughout, with no reported attempt by any State to remove or alter it.

108 Recognized in art 51 of the Charter, cited in Principle 1 of the Treaty; Principle 8 recognizes the right to acquire conventional arms for that purpose and for peacekeeping operations.

109 Which at a minimum must include the International Covenant on Civil and Political Rights, 1966 and the Torture Convention, 1984. More controversial applications might include the Conventions on the Elimination of all Forms of Racial Discrimination, 1966, and of Discrimination against Women, 1979.

110 The UN High Commissioner for Human Rights, Navi Pillay, a former South African Supreme Court Judge, stated in a Council Debate of 23 July 2014 that in its failure to protect Gaza civilians, the Israel response to Hamas ‘indiscriminate attacks’ may have violated IHL in a manner that could amount to war crimes: <http://www.bbc.co.uk/news/world-middle-east-28437626>. The Gaza civilian death toll increased greatly in the ensuing weeks.

111 Art. 7.2, which reads as follows: ‘The exporting State Party shall also consider whether there are measures that could be undertaken to mitigate risks identified in (a) or (b) in paragraph 1 (see n 111), such as confidence-building measures or jointly developed and agreed programmes by the exporting and importing States.’

112 Both suggestions are offered in the Geneva Academy Briefing; see (n 87) 29.

113 For details, see Lustgarten (n 12) 534–5.

114 The full text of art 7.3 reads as follows: ‘If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1 [ie, art 7.1], the exporting State Party shall not authorize [sic] the export’.

115 The French text uses ‘preponderant’.

116 These included some significant exporters like Germany and UK, and the EU itself.

117 The Philippines followed in the US wake, on this as on most issues.

118 The exception is that case of child soldiers, coerced into fighting for various paramilitary bodies. This practice of forced conscription, a severe human rights violation, should itself be regarded as violence against children.

119 They amount to about 70 per cent of all those the UNHCR regards as ‘persons of concern’. This figure may be calculated from a recent Report: UNHCR, Global Trends 2011 (2012) 3.

120 The former art 4.6.

121 For an illustration of how a sustainable development criterion might be implemented, see Oxfam, Practical Guide: Applying Sustainable Development of Arms-Transfer Decisions (Oxfam International Technical Brief April 2009).

122 For an account of earlier attempts, see Bromley, M, Cooper, N and Holtom, P, ‘The UN Arms Trade Treaty: Arms Export Controls, the Human Security Agenda and the Lessons of History’ (2012) 88 IA 1029, 1031–4Google Scholar. Professor Cooper is preparing a more extensive historical study of arms trade regulation. For a study of League of Nations efforts, see Stone, DR, ‘Imperialism and Sovereignty: the League of Nations' Drive to Control the Global Arms Trade’ (2000) 35 JContempHist 218Google Scholar

123 Which insisted on ‘consensus decision making to allow us to protect US equities’ consensus as one of its ‘redlines’.

124 At least ten States referred to the abandonment of consensus as a strong objection in their General Assembly statements on 2 April 2013. China gave particular emphasis to this, decrying the abandonment of universality as a principle of multilateral treaty making.

125 Art 2. The omission of dual-use goods is also of great practical importance, but since their inclusion was never even a remote possibility, it would be unfair to criticize the Treaty on this ground.

126 Art 7.

127 A prominent example of this is that ever since the establishment of the European Economic Community in 1957, and throughout the history of ever-expanding Community and now Union competence, Member States have insisted on retaining exclusive competence in matters they ‘consider necessary for the protection of the essential interests of [their] security which are connected with the production of or trade in arms, munitions and war material’. This provision has, almost uniquely, remained unaltered since 1957, and is now found in art 346 of the Treaty on the Functioning of the European Union.

128 Art 20.3.

129 Art 20.4.

130 Those who sign but do not ratify, like the United States, nonetheless put themselves under an obligation of good faith not to act so as to frustrate the objects of the Treaty: see Vienna Convention on the Law of Treaties 1969, art 18.

131 Described in the Treaty as ‘confidence-building measures or jointly developed and agreed programmes by the exporting and importing States’: art. 7.3. A particularly critical one is destruction and disposal of surplus weaponry after the end of internal conflicts. A detailed set of practical suggestions for international assistance in implementation is presented in M Bromley and P Holtom, ‘Arms Trade Treaty Assistance: Identifying a Role for the European Union’, EU Non-Proliferation Consortium Discussion Paper, (SIPRI, February 2014)

132 ATT art 15, concerning ‘International Cooperation’. Art 15.6 refers to prevention of transfers ‘becoming subject to corrupt practices’.