The Goals the U.S. Should Pursue at the 2016 Conference of States Parties to the Arms Trade Treaty

August 19, 2016 8 min read Download Report

Ted Bromund

@Bromund

Senior Research Fellow, Margaret Thatcher Center for Freedom

Ted Bromund studies Anglo-American relations, U.S. relations with Europe and the EU, and the U.S.’s leadership role in the world.

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From August 22 to 26, the second Conference of States Parties (CSP2) to the Arms Trade Treaty (ATT) will be held in Geneva. The United States is a signatory of the ATT, in force since December 2014—but as the Obama Administration has not transmitted this treaty to the Senate for its advice and consent, the U.S. is not party to the ATT, which purportedly seeks to regulate the international trade in many conventional weapons. As an observer nation, the U.S. will have an important voice, though no vote, in Geneva.

At CSP2, the U.S. should discourage attempts to expand the treaty’s scope, and emphasize that states parties to the treaty should focus on fulfilling the obligations they have already accepted before inventing new duties or collecting additional ratifications. The U.S. should also continue its efforts to clarify the treaty’s reporting obligations, and to ensure that treaty meetings are open to all relevant non-government organizations and industry groups.

Finally, the U.S. should flatly refuse to make any contributions to any voluntary funds established by the treaty or to the treaty secretariat, and should ensure that the secretariat and any other treaty institutions have a strictly limited scope and budget.

International Assistance and the Secretariat at CSP2

Three informal meetings, held on April 4, April 28, and May 18 this year, have set out a draft agenda and work program for CSP2.[1] This program is long on ceremony, general statements, and administrative matters, and short on substance. During the three days when CSP2 is nominally engaged in serious matters, it will focus on (1) international assistance from developed to less-developed states parties, purportedly to enable them to implement the treaty; (2) reporting of imports and exports of conventional arms, and other matters specified in the treaty; (3) treaty implementation; (4) promoting universal treaty adoption; (5) the treaty secretariat; and (6) matters pertaining to CSP3, to be held in 2017.

In many of these areas, especially those pertaining to international assistance, the secretariat, and CSP3, U.S. interest lies in ensuring that the ATT’s institutions are narrowly focused. The U.S. should pay a share of CSP expenses proportionate to the size of its delegation, but it should not—as was agreed at CSP1, held in Cancun in 2015—subsidize the costs of the CSP for other nations.[2] Nor should the U.S. make any contribution to the Voluntary Trust Fund supporting treaty implementation, or the Sponsorship Programme supporting the attendance of other nations at CSPs. Finally, as the treaty will not open for amendments until late 2020, the agenda for CSP3 should focus solely on the treaty as it currently exists.

Even more important is to ensure that the treaty secretariat does nothing more than provide administrative support for the obligations set out by the treaty, and for the CSPs and other relevant meetings. At the informal meeting held on April 4, Ambassador Emmanuel E. Imohe of Nigeria, the president of CSP2, suggested the “establishment of a panel to deal with ‘best practices’ and challenges to implementation.”[3] This is an extremely undesirable idea, as such a panel would in practice be able to re-interpret the terms of the treaty as it pleased. Fortunately, Ambassador Imohe’s proposal met resistance from many nations, including the United States. The U.S. should continue to vigorously oppose any efforts to allow the secretariat or other treaty bodies to become involved in treaty interpretation or implementation.

Treaty Implementation, Reporting, and Universalization at CSP2

The ATT is supposed to be implemented solely by the nations that are party to it. Therefore, neither CSP2 nor any other entity related to the treaty has any role in treaty implementation. The draft program of work for CSP2 allocates only three hours to “exchange views on Treaty implementation.” Unfortunately, this agenda item also asserts that the discussion should include “developments in the field of conventional arms.”[4] This language is drawn directly from the treaty text, but it implies that one of the purposes of CSP2 is to begin to formulate treaty amendments, which is premature and opens the door for further activism aimed at re-writing the treaty in ways that will impinge even more tightly on the United States.

The draft “guidance document” for this discussion is also not fully satisfactory. It states that the ATT is “implemented primarily at the national level,” which is incorrect: Implementation is entirely at the national level.[5] This error implies the ATT’s promoters continue to harbor a desire to give the treaty secretariat a role in treaty implementation. On the other hand, the subjects the guidance document sets out for discussion have the potential to be entirely innocuous, and given the limited time allocated to the subject, and the fact that national statements in plenary sessions tend to be banal in the extreme, it is, fortunately, possible that CSP2 will do little of substance on implementation.

Reporting under the ATT is a contentious and important subject. Reporting templates were supposed to be ready at CSP1, but the templates are still in draft, and subject to continued revision by a working group.[6] It is probable, though not certain, that CSP2 will adopt final versions of the templates. The U.S. has played a constructive role in seeking to ensure that these templates reflect the obligations actually contained in the treaty, not the desires of the activist groups that initially drafted them.[7] To this end, the U.S. should seek to ensure that the reporting templates cover only items required by the treaty, and do not include—as is currently the case—a wide range of voluntary reports, which activist groups can later seek to make mandatory.[8]

It is particularly important that the templates draw their definitions carefully from the U.N. instruments specified in the ATT text. Currently, the draft annual reporting template suggests—though does not require—that nations report their small-arms and light-weapons imports and exports in 13 separate sub-categories, largely as set out in the U.N. Register of Conventional Arms. But the ATT text states only that “relevant United Nations instruments” should be used to define this category, and explicitly avoids drawing on the Register. Thus, not only does the draft template include voluntary reports, it is in this case taking its definitions from a source not authorized by the treaty text. This manipulation shows that activists are most interested in using the ATT as an instrument to regulate and control the trade in small arms and light weapons.

The broader point, though, is simple: States parties to the ATT are already failing to meet its reporting requirements. As of August 15, 2016, of the 66 states parties that were supposed to file an initial report on their implementation of the treaty by that date, only 49 had done so, and of these, 33 were in Europe. As of the same date, of the 83 states parties, only 46 (32 of them in Europe) had filed an annual report for 2015 on authorized imports and exports of conventional arms, a report due on May 31, 2016.[9] In short, treaty reporting is lagging badly, and outside Europe, few nations are complying even nominally with the most basic treaty requirements.

Given this state of affairs, the emphasis that CSP2 intends to give to “treaty universalization” (i.e., encouraging the U.S. and other nations to ratify the treaty) is farcical. The “draft discussion paper” on treaty universalization presented on May 18 is wholly unsatisfactory, as, amid many other recommendations, it urges

deliberate Treaty propagation and advocacy, to be anchored by States Parties, civil society and advocacy groups…[and that they] partner with UN agencies, regional organisations, civil society and friendly donor agencies to conduct outreach programs with signatory states [such as the U.S.] with a view to identifying the impediments standing in the way of ratification.[10]

This is a call for the opening of a coordinated propaganda campaign inside the U.S. and other signatories, to be conducted by foreign governments and U.N. agencies, to promote treaty ratification. The U.S. should make it perfectly clear that, if anything could make both the treaty and the U.N. less popular in the U.S. than they already are, it is such a campaign, one waged in part by the U.N., and thus conducted in part with U.S. taxpayer dollars.

Such a campaign would undoubtedly raise serious questions about the size and composition of the U.S. contribution to the United Nations. If the states parties to the treaty are so concerned about its fate, they should start by living up to its reporting requirements themselves, not by seeking to foist the treaty on nations that have not signed or ratified it.

The Activist’s Dilemma

The activists who back the ATT have somehow convinced themselves that every CSP will be a hard-hitting endeavor that allows “an honest assessment of the Treaty implementation” and identifies “concrete measures to improve the current track record of states parties.”[11] But in the universe of programs and treaties relevant to conventional arms, no meeting ever proceeds this way. These meetings are always conducted on the bland assumptions that every nation (with the exceptions of the U.S. and Israel and a few other democracies) is responsible; that every state party is complying with the treaty; and that the only thing needed to resolve any remaining difficulties is another meeting, preferably held in an agreeable location such as Cancun.

The ATT is following the precedent set over the past 15 years by the U.N.’s Programme of Action (PoA) on small arms and light weapons, which has evolved into a results-free talking shop that fewer and fewer nations treat with nominal seriousness, as evidenced by their failure to comply with the PoA’s reporting provisions.[12] When the ATT supporters realize that this treaty is also not producing results, they will lose faith in it, and move on to promoting a new fantasy. If the results of the Geneva meeting are sufficiently paltry, CSP2 could mark the decisive moment when the faith of the treaty’s most fervent promoters began to sour publicly.

What the U.S. Should Do

CSP2 does pose risks, and in Geneva the U.S. should seek to ensure that:

The secretariat and other treaty bodies are strictly limited, that reporting templates are drafted appropriately, and that the states parties are warned off any effort to indulge in propaganda campaigns directed at other nations, especially when they themselves are failing to meet the treaty’s reporting requirements; and
Treaty meetings remain open to all relevant organizations, not merely to the activists who in practice already enjoy privileged access to the treaty’s committees and many of its leading figures.[13]

Congress should also continue to make clear that it opposes ratification of the treaty and will not allow the use of taxpayer dollars to implement the treaty in the United States.[14] The ATT is failing partly because of firm congressional opposition—led in the House by Mike Kelly (R–PA), and in the Senate by Jerry Moran (R–KS) and James Inhofe (R–OK)—and partly because of the hard work of a number of serious and responsible U.S. diplomats.

Most of all, though, the ATT is failing because it is based on the fantasy that, in a world full of brutal dictatorships, lawless autocracies, armed terrorists, and incompetent governments, a universal treaty that cannot possibly be verified, and which lacks any incentives for compliance, can bring order to the arms trade, the treaty’s nominal focus. In practice, the treaty will impinge only on law-abiding democracies. This suits many of the activists just fine, because they are more concerned with imposing restrictions on the foreign policies of and personal freedoms in democratic nations than they are with confronting the activities of the authoritarians.[15]

But if CSPs produce nothing more than a banal series of speeches, and if many nations cannot be bothered to make their required reports, it will be hard even for the activists to view the ATT as a success. The concern about CSP2 in the activist community testifies that even those activists may belatedly be coming to the realization that the treaty is failing.

—Ted R. Bromund, PhD, is Senior Research Fellow in Anglo–American Relations in the Margaret Thatcher Center for Freedom, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation.

[1] “CSP2 Draft Annotated Provisional Programme of Work,” ATT Second Conference of States Parties, May 18, 2016, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp2-prep/Draft_Annotated_Program_of_Work_-18_May_2016.pdf (accessed August 17, 2016).

[2] “Financial Rules for the Conferences of States Parties and the Secretariat,” ATT First Conference of States Parties, August 25, 2016, http://thearmstradetreaty.org/images/ATT_CSP1_CONF.2.pdf (accessed August 17, 2016).

[3] Jessica Lawson, “Arms Trade Treaty States Parties Meet for First Informal Consultation on Next Conference,” Reaching Critical Will, April 5, 2016, http://www.reachingcriticalwill.org/disarmament-fora/att/csp2-prep/reports/10780-arms-trade-treaty-states-parties-meet-for-first-informal-consultation-on-next-conference (accessed August 17, 2016). This idea is unfortunately a hardy perennial: See Ted R. Bromund, “In Cancun, the U.S. Gets Played,” The Weekly Standard, August 31, 2015, http://www.weeklystandard.com/cancun-us-gets-played/article/1023052 (accessed August 17, 2016).

[4] “CSP2 Draft Annotated Provisional Programme of Work.”

[5] “ATT-Second Conference of States’ Parties. Exchange of Views on the Treaty Implementation,” undated [May 2016], http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp2-prep/Draft_Paper-Treaty_Implementation-18_May_2016.pdf (accessed August 17, 2016).

[6] “Working Group on Reporting Templates,” ATT Second Conference of States Parties, April 2, 2016, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp2-prep/wg-reporting-templates.pdf (accessed August 17, 2016).

[7] The facilitator on the reporting templates, Ambassador Paul Beijer (Sweden), stated in his remarks on August 25, 2015, at CSP1 in Cancun, which the author attended, that the templates were “initially drafted by civil society experts.”

[8] “Report of the ATT Working Group on Reporting Templates to the Second Conference of States Parties,” ATT Second Conference of States Parties, July 17, 2016, http://www.thearmstradetreaty.org/images/Annual_Reports_2015/Working_Group_on_Reporting_Templates-Final_Report_to_CSP2.pdf (accessed August 17, 2016).

[9] Data drawn from “ATT Status of Ratifications and Accessions,” United Nations, August 10, 2016, https://unoda-web.s3-accelerate.amazonaws.com/wp-content/uploads/2016/08/ATT-status-table-WebReport-10-August-2016.pdf (accessed August 17, 2016), and “Reporting and Deadlines,” ATT Secretariat, August 15, 2016, http://thearmstradetreaty.org/index.php/en/resources/reporting (accessed August 17, 2016). Even if only the 61 nations that ratified the treaty prior to 2015 are counted, almost one quarter (14 of 61) of the states parties have not met their reporting requirements, and more than half the reports (32 of 61) are from Europe.

[10] Emmanuel E. Imohe, “Draft Discussion Paper. Promotion of Treaty Universalization,” May 2016, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp2-prep/Draft_President_Paper-Treaty_Universalization-_18_May_2016.pdf (accessed August 17, 2016).

[11] Jessica Lawson, “Third Informal Consultation on Arms Trade Treaty CSP2,” Reaching Critical Will, May 20, 2016, http://www.reachingcriticalwill.org/disarmament-fora/att/csp2-prep/reports/10824-third-informal-consultation-on-arms-trade-treaty-csp2 (accessed August 17, 2016).

[12] Ted R. Bromund, “Declines in National Reporting Reveal Failure of U.N.’s Programme of Action on Small Arms,” Heritage Foundation Issue Brief No. 4412, http://www.heritage.org/research/reports/2015/05/declines-in-national-reporting-reveal-failure-of-uns-programme-of-action-on-small-arms.

[13] Ted R. Bromund, “ The U.S. Must Uphold the Arms Trade Treaty’s Limits at the First Conference of States Parties,” Heritage Foundation Issue Brief No. 4456, http://www.heritage.org/research/reports/2015/08/the-us-must-uphold-the-arms-trade-treatys-limits-at-the-first-conference-of-states-parties, and David Bosco, “The Day the Obama Administration Holstered Its Gun,” Foreign Policy, February 13, 2015, http://foreignpolicy.com/2015/02/13/the-day-the-obama-administration-holstered-his-gun/ (accessed August 17, 2016).

[14] For the most recent round of letters, see “Rep. Kelly Enlists House Freshmen in Fight to Stop UN Arms Trade Treaty,” Office of U.S. Representative Mike Kelly, March 3, 2015, http://kelly.house.gov/press-release/rep-kelly-enlists-house-freshmen-fight-stop-un-arms-trade-treaty (accessed August 17, 2016), and “Sens. Inhofe and Moran Lead Freshman Senators in Telling White House that Opposition to U.N. Arms Trade Treaty Remains Strong,” Office of Senator James M. Inhofe, March 3, 2015, http://www.inhofe.senate.gov/newsroom/press-releases/sens-inhofe-moran-lead-freshman-senators-in-telling-white-house-senate-that-opposition-to-un-arms-trade-treaty-remains-strong (accessed August 17, 2016).

[15] For the reluctance of the activists to condemn dictatorial regimes by name, and their tendency to talk about gun control, see Ted R. Bromund, “In Cancun, the Air Leaks Out of the ATT’s Balloon,” The Weekly Standard, August 26, 2015, http://www.weeklystandard.com/cancun-air-leaks-out-att-s-balloon/article/1019100 (accessed August 17, 2016), and Ted R. Bromund, “How Do You Know This Treaty’s Working?” The Weekly Standard, August 28, 2015, http://www.weeklystandard.com/how-do-you-know-treaty-s-working/article/1020956 (accessed August 17, 2016).