Deciphering the UN Arms Trade Treaty

The UN Arms Trade Treaty passed by the UN General Assembly in first week of April was long in coming which meant that it would be well thought out and a comprehensive document with the opposing views of all the concerned nations having been taken into account. But that was not to be so. Like many other international treaties the affected nations like India were quite critical of the approved version of the Treaty.

Though the objectives and purpose of the treaty are very noble i.e. to establish the highest possible common international standards for regulating trade in conventional arms; and to prevent and eradicate the illicit trade in conventional arms and prevent their diversion yet the measures spelt out in the treaty remain either vague or very weak and difficult to monitor and implement.

Though many African countries supported the Treaty, it was mainly the UK aided by many western nations that was instrumental in getting the Treaty approved. India objected to the treaty on various grounds with the main objection being that “the final draft falls short of our expectations and a number of other key stakeholders in producing a text that is clear, balanced and implementable and able to attract universal adherence”. Further, the treaty would not make a real impact on illicit trafficking in conventional arms and their illicit use especially by terrorists and other unauthorized and unlawful non-state actors. India also remains concerned that exporting countries would renege on their defence export contracts based on their own whims and fancies without facing any penalties by citing some of the clauses mentioned in the Treaty.

Analysing the text of the Treaty it is easy to surmise why India is so concerned with the possible outcomes of such an imbalanced treaty. In this connection a reading of Article 7 and Article 8 would reveal that the end user agreement which India has been refusing to sign with the United States for importing defence systems and weapons would become meaningless if India was to accede to the Treaty. Article 8 states that “Each importing State Party shall take measures to ensure that appropriate and relevant information is provided, upon request, pursuant to its national laws, to the exporting State Party, to assist the exporting State Party in conducting its national export assessment under Article 7. Such measures may include end use or end user documentation.”

Article 7 states that the exporting state would make an assessment before export that the arms being exported would contribute to or undermine peace and security; and whether they could be used to commit or facilitate a serious violation of international humanitarian law or international human rights law. Since the exporting state has to make the determination it would naturally be impacted upon by the geo-political and commercial aspects rather than principles enshrined in the preamble and text of the treaty.

For instance it would be kosher to supply arms to rebels/ militants say in Syria as is being done. Supplying F-16 jet fighters to Pakistan to counter its own people would also be okay as the determination has to be made by the exporting country. Not only this, the US has progressed further to give more military aid to Pakistan that has been supporting the Taliban who have killed many American and ISAF soldiers. Further, Pakistan has signed the Treaty secure in the knowledge that after all it has got away with flouting many international norms in the past and signing one more treaty would not matter very much.

There is also a clause on preventing diversion of the arms (Article 11). However, the major problem is that South Asia is awash with illicit small arms and munitions because of the left-over weapons from Afghan jihad against the Soviet Russia. India is doubly impacted since unmarked weapons possibly of Chinese origin supplied from Yunnan-Myanmar border are fuelling the Naxalite and North East insurgencies. Can such a treaty be instrumental in preventing such illegal arms transfers? Seems unlikely.

Can it be said that western nations who have dictated the dominant discourse in the conclusion of treaty will not use the treaty for their own geo-political ends? Intervention in domestic affairs of developing countries on the pretext of violation of human rights has been used by the western countries as a political tool to elicit an outcome which is favourable to them. Therefore, a selective application of the treaty by precisely some of those very nations which are in the forefront is well nigh possible. Looking back at the Non Proliferation Treaty one can draw some lessons. Scruples are always a causality as long as they don’t affect your own interests.

Moreover, the UN has to still come up with an agreed definition of a terrorist and confusion still prevails on the so oft repeated cliché of ‘one man’s terrorist is another man’s freedom fighter’. There is also no mention of non-state actors in the treaty. Countries like Pakistan have been using non-state actors as proxies and supply arms and explosives to such entities to achieve their policy objectives. Therefore, it is natural to conclude that the Treaty is not comprehensive one with many flaws.

No wonder that such a treaty has been described as unimplementable. And it does not adequately serve the objectives and purpose for which it has been framed.