New Action to Control the Arms Trade

When the Colombian Air Force begins later this month accepting delivery of a fleet of new Super Tucano aircraft intended to help it prosecute counter-insurgency operations in its decades-long civil war, Colombia will in effect be importing engines from Canada, machine guns from Belgium, rangefinders from the United States, avionics from Israel, radios from Germany, ejection seats from the United Kingdom, and any number of other components and sub-systems from other countries.

None of these countries allows such exports without a permit, but not one of them has authorized the exports to Colombia. That’s because, before going to Colombia, all of the components first go to Brazil where they are assembled to become the Super Tucano – and from they are shipped to Colombia subject only to Brazil’s export control system.

Welcome to the global arms factory, the loophole-ridden international arms production and marketing system. But there are signs of change. A new initiative and landmark resolution launched at the United Nations this fall aims to finally bring the arms trade under some measure of control.

Military export controls are designed to prevent exports that could destabilize regions, exacerbate wars, contribute to human rights violations, or otherwise undermine international security and the safety of people. Canada’s policy, limits direct military sales to countries like Colombia – that is, to countries in conflict and where there is a risk that the arms will be used in gros and systematic human rights violations.

But there is no effort to exercise control over the final destination of indirect sales. So Canada authorizes exports of engines to the country where the aircraft are being assembled, but makes no judgment about where the engine is sent to actually be used military purposes.

That would be a defensible arrangement if there were universal or global standards for exports and if Canada was confident that Brazil, in the case of the Super Tucano, would apply the same control standards as Canada when it makes decisions about export permits. But there is no uniform international standard, and the situation is thus made to order for regulation shopping – looking for countries with the least stringent export controls as locations to assembly weapons systems that can then be sold throughout the world with minimal restrictions.

The new UN initiative builds on a major international civil society effort that has been ongoing for more than a decade to develop legally-binding international standards to regulate arms transfers. A General Assembly resolution acknowledges that “the absence of common international standards on the import, export and transfer of conventional arms is a contributory factor to conflict, the displacement of people, crime and terrorism,” and that the absence of common standards therefore “undermines peace, reconciliation, safety, security, stability and sustainable development.”[i]

Canada cosponsored the resolution and Canada’s Ambassador to the Geneva-based UN Conference on Disarmament, also emphasized that “a comprehensive, legally-binding Arms Trade Treaty could provide important international and human security benefits, notably by curtailing the irresponsible trade in all types of conventional arms.”[ii]

A key principle to be imbedded into the Treaty is that states are culpable if they knowingly assist other states in the commission of an illegal act – for example, if a state knowingly provides military equipment when it is reasonable to expect that it will be used to violate human rights then the supplier is also guilty of violating human rights law.[iii]

States advocating new efforts at arms trade restraint met earlier this year in Kenya and articulated a set of global standards by which exporting states acknowledge their obligation to prevent exports if there is a reasonable risk that the commodities in question will be used to commit grave or persistent violations of human rights or fundamental freedoms, grave breaches of international humanitarian law, acts of genocide, or crimes against humanity. They agreed that exports should also not contravene bilateral or multilateral commitments on non-proliferation, arms control, and disarmament, or support or encourage terrorist acts or the commission of organized or violent crimes.[iv]

The pursuit of common standards has the potential for introducing a significant measure of restraint into the arms trade, but it must also be said that effective and durable restraint will also require significant and enduring reductions in demand, including more effective conflict resolution diplomacy in chronic war situations like the one in Colombia, mutual security arrangements within regions and sub-regions, as well as region wide import bans like the small arms ban in West Africa.

An Arms Trade Treaty will still rely on national decision-making that is still subject to all the conflicting pressures that complicate the setting of national priorities – notably the conflict between export promotion and arms control objectives. But a Treaty would necessarily include mechanisms for greater transparency and accountability, as well as prior peer reviews and consultations in instances of contested export proposals.

In the case of the Super Tucano sale to Colombia, the suppliers of major components would still not have final authority, on their own, over the export permit decisions, but they would be consulted and would participate in a more collective decision-making process.

This fall’s resolution directs the Secretary-General to survey and report on the views of member states on such an instrument, and establishes the experts group that is to report to the 2008 session of the General Assembly.

[i] Resolution A/C.1/61/L.55, October 12, 2006.

[ii] Paul Meyer, “The Need for an Arms Trade Treaty,” Statement to the Conference on Disarmament, Geneva, August 10, 2006.

[iii] Emanuela Gillard, What Is Legal? What Is Illegal? Limitations on Transfers of Small Arms under International Law (Lauterpacht Research Centre for International Law, Cambridge; paper is available at http://www.armstradetreaty.com/att/what.is.legal.what.is.illegal.pdf), p. 4.

[iv] The non-paper was submitted as a Working Paper, submitted by Kenya to the Conference to Review Progress Made in the Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, June 26-July 7, 2006, A/Conf.192/2006/RC/WP.2, (http://www.un.org/events/smallarms2006/pdf/rc.wp.2%20(E).doc).