By Denise Garcia

In 2008, the impossible happened: Viktor Bout, the world’s largest and most notorious arms dealer, dubbed ‘the Merchant of Death’, was arrested in a sting operation in Bangkok. Known to have supplied conventional arms to both enemies and ‘frenemies’ during the Cold War, he was detained on charges of attempting to supply arms to terrorists. Many countries wanted to get him extradited and prosecuted. The United States succeeded, and he is now serving a decades-long term in jail on US soil. A year later the United States jumped on board with all other countries at the United Nations to negotiate a treaty to control the trade in conventional arms, from Kalashnikovs, rifles, mortars, grenades, and shoulder surface-to-air missiles to tanks and battleships.

In April 2013, 154 countries adopted the Arms Trade Treaty (ATT), the first global treaty to control the global arms trade. Only three states voted against it (Iran, North Korea, and Syria). This represents one more step towards stopping arms for atrocities and preventing civil wars. For entry into force the ATT needed the ratification of 50 states, and this happened on 25 September 2014. More than 120 countries have already signed the treaty, including the United States – the American signature, along with those of all the largest European arms exporters, was important to bring momentum towards entry into force, that will now occur in December 25 2014.

It is one of the fastest international conventions to come to life and become international law. Why? Who will obey its new international norms? China, the United States… Russia? If well implemented, the ATT will make another crisis like the Syrian civil war more unlikely by shaming and delegitimizing irresponsible transfers of weapons to the “Putins” and “Assads” of the world. Since the global movement towards the treaty started to gain ground ten years ago, arms sales to nations accused of committing atrocities have already begun to be singled out as progressively illegitimate and no longer desirable in a densely interconnected world.

The treaty creates high international norms, with criteria for transfers articulating prohibitions on transferring arms, and elicits state responsibility vis-à-vis existing obligations such as arms embargos and human rights law commitments like prohibition of torture and genocide. It connects arms transfer obligations to a duty to refrain from the commission of crimes against humanity and grave breaches of the Geneva Conventions (war crimes).

Good for Business and for Human Rights

The ATT is not only an arms control treaty; it is also a humanitarian-inspired business treaty that will help regulate the conventional arms trade, one of the world’s shadiest and in most need of accountability and transparency. It will apply human rights and international humanitarian law criteria to transfers of the weapons that are responsible for most of the killings and violence during conflict around the globe. The role of the United Kingdom as the chief champion state, in initial coalition with Australia, Argentina, Costa Rica, Finland, Japan, and Kenya, was instrumental in galvanizing international efforts towards a treaty.

The treaty is additionally a global mechanism for leveling the playing field regarding export controls. Throughout the negotiations, the United States viewed the ATT as a way to bring other countries up to its own leading export control standards. In fact, manufacturers in several major arms-producing countries are on board with efforts to make the trade a more legitimate business, and supported the negotiations. The ATT promotes transparency in the weapons trade, and is a control and trade agreement based upon the notion that arms transfers should not fuel instability and protracted conflicts around the world. It aims to make it harder for tyrants, gangs, warlords, and pirates to get hold of arms.

Good for America, Good for the World

It is in the American interest to ratify the treaty as soon as possible, because it is a way to bring others to the US standards and signal American commitment to no more arms for atrocities and respect for human rights. The ATT is unique in setting standards on behavior specifically concerning transfers of arms that could facilitate the commission of atrocities during war and “peace”.

Even in the current reality of the American political system, marked by polarization and an allergy to ratifications of global treaties, the United States should not miss the chance to set a good example. Other large and rising arms exporters have already done so. This is therefore the right moment for the United States to show that it is committed to the international laws it has helped create and build since 1945. This is a pressing and unstable era, and US ratification of the ATT would demonstrate its willingness to continue leading the world and show that countries will benefit most from following the US model, not the Putin model. It is time for the United States and China to commit to the ATT. All the largest European arms exporters have already ratified it.

Some senators argue that the ATT “undermines U.S. credibility, threatens the rights of gun owners, and impinges on U.S. sovereignty”. These arguments could not be more inaccurate. The ATT has no provision regarding civilian possession of arms. States are free to create their own laws regarding firearms owned by citizens. There is thus nothing in the treaty that will threaten the Second Amendment of the US Constitution. The ATT is about transfers of arms to locations outside the United States.

Recently, Congress has stopped President Obama from allocating funds for the implementation of the ATT. “Congress is committed to upholding the fundamental individual rights of Americans and rejects the ATT,” according to Senator Jerry Moran (R-Kan). “We will not be bound by the treaty and we will not fund its implementation.” Two clarifications are warranted. First, a country’s signature represents a potential commitment towards ratification. It is only after ratification by the requisite 50 nations that implementation takes place. Second, the United States released Presidential Policy Directive 27, which is an updated US arms export policy. It states that the US “conventional arms transfer policy” serves various national security and foreign policy goals, including the following:

“Promoting regional stability, peaceful conflict resolution, and arms control. Combating transnational organized crime and related threats to national security.

Ensuring that arms transfers do not contribute to human rights violations or violations of international humanitarian law.”

These goals are exactly in line with the ATT’s aspirations. The United States has nothing to lose with the ATT – on the contrary, US arms exports policies are better, and more restrictive, than the treaty’s provisions. US ratification would serve American national interest because it would persuade other nations that arms sales have to be not only a legal but also a legitimate business.

US ratification would be a good outreach exercise. It would show real leadership by the United States in these very troubling times when Russia – another major arms exporter – seems to think that it can act illegally under the mantle of its own version of international law.

Implementing the Treaty: Can the Treaty do it without them?

Can the ATT succeed without the ratifications of the United States, China, and Russia? Other disarmament treaties have prospered without them – the Comprehensive Test Ban Treaty and the Anti-Personnel Mine Ban Treaty, for instance, among others but this one will need the largest arms exporters. So the road ahead is arduous and here is what is at stake for them.

Many arms control treaties that affect national security were not ratified by the major powers. However, they have created powerful norms that everyone respects. No one wants to be seen doing something almost every nation thinks is against what is commonly viewed as right and customary. The reality now is that more than 50 countries have agreed to enter into legally binding commitments with the ATT, and 154 countries voted yes for the treaty when it was adopted, 22 countries abstained, and three voted against it. No one wants to be on the side of those who were against: Iran, Syria, and North Korea. More than 120 already signed it, including the United States. The majority of the group of abstainers did not have substantive objections, but instead had procedural criticisms, such as the treaty was adopted by majority and not by consensus, and through the General Assembly instead of a proper disarmament forum.

It is possible to imagine that it will be feasible to work with the abstainers: it is not such a large group, and they want to be on the side of those meeting every year to implement the treaty and set new norms, starting in 2015 when the first meeting of states parties will occur. Staying outside the “in-club” will be damaging for countries, large or small, as they will have no say in the new arms-regulated world. The ATT is one more example of an international treaty that is adopting new evolving global humanitarian norms for peace and security. This represents a novel trend in treaty making in the security area that is enormously affecting how countries think about national security: chemical weapons, landmines, cluster bombs, and even the nuclear weapons debate are being viewed as humanitarian pursuits.

Without the ratification of the United States and Russia, the treaty will give rise to a process of “drying the demand” for unscrupulous weapons supplies, as countries which ratify will desire to live in a responsible, international-law-abiding arms business world. Russia, in particular, likely will have fewer clients because the group of unprincipled buyers will get smaller. It is also in the American and Russian interest to be (and to be seen to be) on the right side of the business within this new framework of international law.

There is another area that is crucial in determining states’ interests in ratification. Countries such as India and China want to expand their own indigenous arms industries and break their reliance on arms imports. They want to be part of other related regimes, such as the Wassenaar Arrangement that aims to endorse good behavior and accountability in transfers of dual-use technologies. All the major arms producers want to be in this club too, so they can set rules of engagement and behavior. All members of the politically binding Wassenaar need to agree on inclusion of good-behavior-abiding new states, and the existing members are avid supporters of the ATT. Thus countries wishing to access this lucrative club will have to go in by the ATT door first or stay out of a high-return game.

A peer-to-peer system of engaging the abstainers and recalcitrant states will have to occur from three sources. One is the group of the first 53 ratifying states, which are avid to show the world they are on board in this major historic step to control the shady arms trade. They will have a key role in persuading and working with others to join. Second, civil society through the work of non-governmental organizations (NGOs) has historically been instrumental in galvanizing support, mobilizing will, exposing wrongdoing, eliciting commitment, and confirming the existence of new norms. NGOs will be decisive in the implementation phase, and also in working with others who are still uncertain. Finally, the International Committee of the Red Cross (ICRC) will be a central player. It is the guardian of international humanitarian law and is seen as a neutral promoter of rules of behavior during conflict. Some countries are reluctant to talk to NGOs but will do so to the ICRC.

The United States should act now, when it is the global leader in arms manufacturing. China, which played a very constructive and engaged role during the negotiations, is a leading arms manufacturer. This is thus a good time to use the ATT to create US-Chinese goodwill over arms exports to counter the Russians. It is the US moment to set a good example and to inspire others to the same. Ratification would additionally reassure America’s allies that it is serious about lessening instability and conflict in the world. This is therefore the right moment for the United States to show that it is committed to the international laws it has helped to develop. In an unstable era, if the United States ratifies the ATT it would demonstrate its willingness to continue leading the world and show that countries will benefit most from following its model. It is time for the United States and other larger arms producers to commit to the ATT.

The ATT is already more than words on paper. It represents the codification of evolving international humanitarian norms that show how peoples all over the world have to be protected first, as part of national security. The treaty humanizes world politics, shows the realm of what is possible, and singles out what is no longer acceptable.

ACUNS member Denise Garcia is a Sadeleer Research Faculty and associate professor in the Department of Political Science and the International Affairs program at Northeastern University in Boston


If you would like ACUNS to share your recent writings, such as a newspaper article, op-ed, magazine piece, scholarly article, published blog entry, or book chapter, see our submission guidelines. Pieces do not have to be exclusively published through ACUNS and can have appeared elsewhere.

Feature Image Photo Credit: Arms Trade Treaty High-Level Event, United Nations Headquarters New York, ECOSOC Chamber 25 September 2013