Arms Trade Treaty report card for 2018: must try harder31 October 2018
Reflecting on the fourth Conference of States Parties (CSP4) of the Arms Trade Treaty (ATT), Elizabeth Kirkham and Roy Isbister note that despite some progress, there are reasons to be concerned about the treaty’s long-term health.
In this blog, Roy and Liz highlight two important areas where the ATT seems to be struggling to fulfil its objectives of promoting cooperation, transparency and responsible action by States Parties and reducing human suffering.
CSP4 to the ATT took place in Tokyo from 20-24 August 2018. In retrospect, it could be seen as having served little purpose – seemingly a one-week talking-shop where little was achieved and where the most excitement concerned who would be in charge of running the sponsorship programme to facilitate participation in CSP5 (26-30 August 2019). However such a reading would be to misunderstand the purpose and function of the CSP.
Drawing together the work that has taken place over the course of the preceding year, the CSP consolidates the commitment necessary to take this work forward and serves as a springboard for the next steps in treaty implementation. It also gives States Parties the opportunity to demonstrate their ongoing commitment to the treaty, including its all-important object and purpose. From this perspective, on balance, CSP4 was reasonably successful. In particular, the Working Group on Transparency and Reporting (WGTR) and the Working Group on Effective Treaty Implementation (WGETI) which, throughout the period since CSP3 have developed procedures and guidelines to help States Parties meet their treaty obligations, provided substantive input.
However, it would be misleading to suggest the CSP was a huge success. A combination of systemic weakness and a lack of political will meant that, despite the modest successes of the working groups, there are concerns about how the treaty is working in practice, including with respect to the licensing decisions of some States Parties and the overall quantity and quality of reporting.
Decline in reporting
ATT reporting rates are disappointing: by the time that CSP4 was underway only 73 per cent of the 92 States Parties that should have submitted an initial report (on steps they have taken to implement the treaty) have fulfilled this obligation; and of the 67 reports that have been submitted, ten have not been made publicly available.
These are worrying statistics. Initial reports are supposed to show the laws, regulations, procedures and capacities States Parties have in place that enable them to implement the treaty; crucially, however, it also helps to show where implementation gaps might exist. As such, Initial Reports are a vital tool for assessing gaps in states’ controls that could be addressed through capacity-building assistance. By failing to report – or by reporting and withholding the information from public scrutiny – States Parties may potentially miss out on a range of support that could be accessed from other states, regional and international organisations, and civil society.
In addition, by 31 May each year States Parties are required to report on their arms exports and imports for the previous calendar year. However by CSP4 (almost three months after the 2018 reporting deadline) only 48 out of 84 States Parties had submitted their annual report; the Americas (where only 18 per cent of States Parties had reported) and Africa (where the figure was 24 per cent) fare particularly badly in this regard.
There are undoubtedly a range of factors behind these low levels of reporting – from capacity constraints to a lack of cross-government support for the process. These issues have been discussed in the WGTR and the co-chairs of that working group have committed to exploring these issues further during the intersessional period leading up to CSP5. This is welcome, as is the proposal to conduct outreach to regions where rates of reporting are low. Given that some impediments to reporting – such as internal differences regarding government ministry competencies – can be politically very sensitive, states must identify solutions from within. Nevertheless, external expert support should be available for those States Parties that require it.
Diversity of funding for implementation capacity-building
A significant number of States Parties still lack the capacity to fully implement the ATT. Building the national infrastructure necessary for ATT compliance often takes time and considerable effort, particularly in states that face wider socio-economic challenges. States Parties are undertaking effective work in a variety of national contexts, often involving partnerships with donor states and/or civil society. The EU is currently the largest single provider of ATT capacity-building support with activities in Europe, Asia, Africa, Latin America and the Caribbean; the multi-donor ATT Voluntary Trust Fund (VTF) has facilitated more than two dozen state-led projects over the past two years; while the UN Trust Facility Supporting Co-operation on Arms Regulation (UNSCAR) also supports some ATT-relevant initiatives.
Nevertheless the overall need for capacity-building assistance far exceeds current provision, while the two largest sources of support (EU and VTF) are only directly available to governments, thereby limiting the scope for civil society organisations to take forward valuable initiatives – including awareness-raising, training, experience- and information- sharing, and monitoring. While as many states as possible should support relevant multilateral programmes, ATT implementation promises to be best served through a diversity of cooperation and assistance approaches. In this context, it is important to recognise those states that have also been playing an independent role, either through direct state-to-state cooperation and assistance or through funding other independent projects led by civil society, or by regional and international organisations. ATT implementation support should be both holistic and sustainable and should maximise the expertise that is available not only within government but also within civil society and elsewhere. This will require a long-term commitment on the part of donors as well as enhanced donor coordination to ensure sustainability and efficiency and to minimise duplication of effort.
Problematic arms transfers
Stepping up efforts to build capacity and support treaty implementation in less-capacitated states is only one side of the ATT implementation coin. The other, equally important, relates to how the treaty is applied to actual transfers, especially by States Parties that already have systems and infrastructure in place. It is perhaps unsurprising that in the early days of the treaty there were elements of contention surrounding the application of key parts of the treaty, as States Parties began to work through the ambiguities in the text, most notably those in Articles 6, 7 and 11. Crucial disparities remain, however, with States Parties taking sometimes widely differing approaches to arms transfer authorisations in a variety of contexts. Yet States Parties have been extremely reluctant to address this issue during the CSP process, and there has been criticism of civil society organisations that have tried to raise the matter.
Frustratingly, when the ATT regime was being established, calls for a debate on suspected treaty violations were resisted on the basis that the priority task was to establish effective treaty institutions that would address such questions. These institutions—most obviously the WGETI—have now been up and running for two years, yet there has been little sign of any intention to proactively address this crucial issue.
This ongoing reluctance to work toward resolving disparities in treaty application is now justified chiefly on the grounds that this type of conversation would be damaging to treaty universalisation; that current non-States Parties considering joining the treaty would be discouraged from doing so for fear of being criticised in treaty fora. While the importance of universalisation is undeniable, universal membership at the expense of universal implementation comes with significant dangers for the long-term viability of the treaty. If States Parties are not prepared to discuss different interpretations of how the ATT is being implemented, this could be seen as legitimising an ‘anything goes’ approach to implementation.
For example, since 2015 there has been widespread concern about whether arms supplied by some States Parties to combatants in the Yemen conflict have been in breach of treaty obligations and, because of this, questions have been raised about the treaty’s value. Yet at the same time, several States Parties have made it clear that they are not willing to supply arms for use in Yemen because of the risks that those arms would be used in breach of international law. The contradiction in these two approaches is yielding two unfortunate and related consequences: first, these examples of restraint are not being aired in ATT discussions; and second, the opportunity this situation affords to discuss and agree what the language of the treaty means in practice is being lost. Meanwhile the extreme suffering of the people of Yemen continues.
If the ATT is to be the force for good that its architects and proponents intended, the WGETI and CSP need to address the question of conflicting approaches to treaty implementation. One entry point for this discussion would be for states parties to describe how they apply the Article 6 prohibitions and the Article 7 assessment criteria to anonymised or even hypothetical arms transfer scenarios.
With the treaty now entering its fifth year as a legally-binding agreement it is time States Parties confronted some of these key issues and challenges that must be faced if the ATT is to deliver on its promise to promote transparency and responsibility in the international arms trade, to build peace, security and stability, and to reduce human suffering.