When adopted in 2013 the international Arms Trade Treaty (att) was widely heralded for its life-saving potential and for bringing human rights and humanitarian concerns squarely into international arms transfers decision-making processes. This article takes a critical look at the att meeting cycle, which comprises an annual conference of states parties (csp), as well as preparatory sessions and meetings of the Treaty’s working groups. The article is guided by the question, are att meetings being used to their full potential to meet the Treaty’s objectives and prevent atrocities? It studies two aspects of the att meeting cycles—working groups and annual csp thematic areas of focus — to demonstrate the nature of the substantive outcomes that are emerging from conferences. The article identifies that the inability of states parties to use the meetings to address matters of compliance with the att’s prohibition and risk assessment requirements constitutes a major shortcoming, and offers suggestions and alternatives for states parties and other stakeholders.
When adopted in 2013 the international Arms Trade Treaty (att) was widely heralded for its life-saving potential and for bringing human rights and humanitarian concerns squarely into international arms transfers decision-making processes.1 It was lauded in particular for establishing the ‘highest possible common standards’ among states to prevent humanitarian suffering caused by the international arms trade by ensuring common legal controls and standards. In the following years, states parties set about establishing the necessary infrastructure for the implementation of the Treaty, thereby creating a community of practice. A central aspect of this work has been the annual conferences of states parties (csps), either as a space to take formal decisions or for dialogue.
This article will take a critical look at the att meeting cycle, which comprises an annual csp, as well as preparatory sessions and intersessional meetings of the Treaty’s working groups. It will be guided by this question: are att meetings being used to their full potential to meet the Treaty’s objectives and prevent atrocities? The article begins by outlining background information about the csps, their mandate and evolution. It then looks at two aspects of the att meeting cycles, working groups and csp thematic areas of focus, to demonstrate the nature of substantive outcomes that are emerging from conferences. Finally, it identifies a major shortcoming of these meetings, which is their inability to address matters of compliance with the att’s prohibition and risk assessment requirements.
1 What Is a Conference of State Parties?
Most international treaties include provisions for regular meetings of their states parties, which are those countries that have signed and ratified, or acceded to, the agreement and thus are legally bound by its provisions. The Arms Trade Treaty states in Article 17(1) that, ‘A Conference of States Parties shall be convened by the provisional Secretariat, established under Article 18, no later than one year following the entry into force of this Treaty and thereafter at such other times as may be decided by the Conference of States Parties’.2 Subsequent paragraphs articulate various rules, such as that the csp shall ‘adopt by consensus its rules of procedure at its first session’3 and ‘shall adopt financial rules for itself as well as governing the funding of any subsidiary bodies it may establish as well as financial provisions governing the functioning of the Secretariat. At each ordinary session, it shall adopt a budget for the financial period until the next ordinary session’.4
Article 17(4) outlines what the csps shall do:
4. The Conference of States Parties shall:
- (a)Review the implementation of this Treaty, including developments in the field of conventional arms;
- (b)Consider and adopt recommendations regarding the implementation and operation of this Treaty, in particular the promotion of its universality;
- (c)Consider amendments to this Treaty in accordance with Article 20;
- (d)Consider issues arising from the interpretation of this Treaty;
- (e)Consider and decide the tasks and budget of the Secretariat;
- (f)Consider the establishment of any subsidiary bodies as may be necessary to improve the functioning of this Treaty; and
- (g)Perform any other function consistent with this Treaty.
These sub-paragraphs set out a very wide platform for what the conference may consider, as within most there is considerable space for interpretation, and sub-paragraph (g) is particularly open. As with all treaties, paragraph formulation and content are the by-products of negotiation processes and the compromises states have made in other areas.5 Paragraph 17(5) additionally sets out that ‘Extraordinary meetings of the Conference of States Parties shall be held at such other times as may be deemed necessary by the Conference of States Parties, or at the written request of any State Party provided that this request is supported by at least two-thirds of the States Parties’.
Five conferences of states parties have occurred since the att entered into force. They have all been five days in duration and have generally followed a similar programme of work in that they allocated time to hear statements on core subjects of implementation, reporting, universalisation, assistance and cooperation, matters pertaining to the att Secretariat, financial matters, and planning for the next conference.6 All csps have opened with a general ‘debate’ which is something of a diplomatic conference misnomer, as there is no active debate or exchange among participants but rather the reading of prepared statements of position. The three most recent meetings have also featured thematic panel discussions.
The primary formal output of a csp is its final report, which contains all decisions and recommendations made by states parties throughout the meeting, usually based on advance inputs from working groups or other bodies. Reports also include a limited description of the proceedings, lists of participants, and sometimes have annexed to them additional documents. These are negotiated documents.7
The conferences base their operations on Rules of Procedure. These Rules set out all modalities for participation, accreditation, decision making, agenda making and dissemination, among other items.8 They were adopted at csp1 following several preparatory meetings through which they were negotiated, in order to be ready for adoption upon the opening of csp1.9
The conferences are chaired by a president, with the support of vice presidents. The att Secretariat plays a significant role in preparing and supporting each csp. Conferences are funded through contributions from states parties which are made on an assessed basis using the UN scale of assessment but adjusted to take into account the difference between the UN membership and the number of states parties.10 A sponsorship programme has enabled participation to meetings for some states parties.11
There are five broad types of participants at a csp: states parties (countries that have signed and ratified, or acceded, to the att); signatories (countries that have only signed but not ratified the att); observer states (those that have not acceded or signed); organisations (like the International Committee of the Red Cross, or UN agencies; and civil society organisations. Civil society organisations encompass academia, industry, as well as more traditional advocacy and research groups.12 Positively, all these participants can contribute in fairly equal ways, although only states parties may take decisions. Civil society organisations, for example, can ‘take the floor’ to deliver a statement, and may do so more than once in a conference. All can receive conference materials and submit their views in writing. The plenary meetings of a csp are public unless decided otherwise at the request of a state party.13 In advance of a csp there are usually two informal preparatory meetings of one day in length. These are typically opportunities for a csp president to hear views on any aspects of the coming meeting that might be challenging or require negotiation, as well as finalise a csp’s programme of work or other arrangements.
2 Talking Substance
There is not enough space in this article to provide a detailed account of every csp. Table 1 summarises the major decisions and outcomes of each.
There is thorough reporting from media and civil society on these meetings14 and all official documents as well as many statements are available online.15 Some specific outputs are described throughout this article, starting with a consideration of the type of discussion that is normally held at a csp. From the outset, the annual csps have placed a heavy focus on administrative and procedural matters that reflected their initial need to adopt meeting rules of procedure, establish a secretariat, and decide budgetary matters, as set out in att Article 17. These actions were necessary to create the overarching institutional framework that enables an instrument to function and be implemented with oversight, support and coordination including by provisions mandated in the treaty itself.
Striking a balance between ‘procedure’ and ‘substance’ has been a long-running theme in the context of att conferences. There is not a hard definition for either word. Procedure should, in theory, refer only to matters of a meeting’s operation (participation, decision making, formalities, and so forth) but is sometimes used more loosely in reference to any administrative, financial, and human resources issues on the agenda. Substance is generally understood to refer to technical topics that correspond with an instrument’s provisions, implementation, or universalisation.
Some have felt that over the last five years an undue amount of meeting time has been given to discussing topics that would qualify as human resources, or administration, at the expense of technical or political work. It was necessary in the first csp to focus on and resolve such matters. Areas of particular debate or contention at csp1 included decision-making procedures; the nature and extent of civil society participation; role of signatories and observers; and the openness of subsidiary bodies. In order to have the meeting it was necessary to adopt the Rules of Procedure as first matter of business. Other decisions such as on the location and remit of the att Secretariat required urgent determination. As the trend continued into csp2, however, more states alongside civil society organisations began to call for more technical and/or substantive work — even as other states argued the opposite, or argued that the att was not yet ready or mature enough for more challenging questions.16 As recently as April 2019, the then-csp President expressed hope during a preparatory meeting that csp5 could be a turning point for states parties to move from discussing matters of institution building to ones of substance.17
A review of Table 1 shows that over time, the csps have become a forum for increased substantive discussion about the att, relevant cross-cutting issues, and have also opened up space for state party and expert exchange on many aspects of implementation, universalisation, and reporting. Yet, as this article will explore in a later section, one of the most central dimensions of Treaty implementation — compliance with the prohibitions and risk assessment requirements found in Articles 6 and 7 — is consistently overlooked. It has become evident that different actors view ‘substance’ at a csp in different ways. This in turn has had an uneven effect whereby csps have generate strong outputs in some areas, and none at all in others.
To illustrate this point, this article will now consider two aspects of the csps that have played a role in facilitating substantive exchange: the att working group system, and thematic areas of focus at conferences.
2.1 Evolution of Working Groups
att states parties have created three standing working groups: Effective Treaty Implementation (wgeti); Treaty Universalisation (wgtu); and Transparency and Reporting (wgtr). These working groups and their intersessional meeting schedule have helped to create space for technical discussions and information sharing among states parties that is undoubtedly of a substantive nature. Whether or not they are ensuring that the Treaty prevents atrocities and lives up to its objectives is another matter to which we will return later in this article.
The formal status of each group has evolved along slightly different paths, moving from ad-hoc or temporary bodies to standing ones.18 They are each chaired by 1–2 persons and meet twice during the intersessional period for meetings of approximately one day in length. None of the groups have any formal membership. Any state party can attend and many observers, either from government or civil society, do as well and provide both written and oral inputs. It is common that working group meetings feature presentations from experts. A report from each group is submitted to the csp president ahead of the annual conference. The reports contain a brief description of the meetings held, topics discussed, any pertinent areas of convergence or difference of opinion, and they usually recommend actions for endorsement at the csp. Often, written materials and resources that a group has been charged with developing are annexed to the report. The wgeti has established several sub-working groups on Article 5 (discontinued as of csp5), articles 6 and 7, Article 9 (new as of csp5), and Article 11.19
The working group format has enabled the att community to undertake more concrete work across these three pillars than would likely have been possible through a single annual meeting. In doing so they have however altered the nature of the csps. If there is any negotiation required on a working group’s outputs for example, that will occur in advance of a csp. Lengthy technical discussions either occur in the context of a working group meeting in the intersessional period or are provided in writing to a chairperson.20 The csps have therefore become more of a formality to approve and finalise initiatives incubated during the intersessional period. Statements delivered at a csp on either implementation, universalisation, or reporting often focus on whatever recommendations or proposals the relevant group is putting forth. This may go some way in explaining why some feel that there is more procedure than substance discussed at csps — the administrative or financial matters that require decisions do not always have the same vetting and preparation space as the substantive topics. It is also worth noting that a heavier meeting schedule increases financial burdens, which can impact who is in the room during these meetings and in turn, the perspectives included in working group outputs. Sponsorship programmes exist and to date these meetings have taken place in diplomatic hubs where many states have representation, but a review of participation lists shows that registration is higher at the annual meeting, and more diverse. Overall, however, this approach is generally viewed as a positive set-up that states parties appear open to continuing.
By definition, the working groups are intended to support att objectives, or important related priorities like universalisation. For example, the wgtr has been the primary venue for any work that relates to the reports mandated by the Treaty. In theory, any activity that facilitates reporting also contributes to the att’s stated purpose of ‘Promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms’.21 Transparent reporting is an important way for states parties to demonstrate that they are implementing the Treaty while also helping to identify gaps in controls and serving to build confidence among states.
From csp1 and csp2, the wgtr — which had a different status then — was the space through which states parties attempted to develop report templates and air views on whether or not reports should be public or private by default. In later meetings, it mandated the att Secretariat to establish a database of national contact points involved in reporting processes and preparing guidance for states parties to assist them in preparing reports, among other activities. The wgtr has engaged in activities related to diversion prevention, as discussed below. Its mandate for the period between csp5 and csp6 states that, ‘The wgtr shall continue to conduct exchanges concerning the fulfilment of the reporting obligations in article 13 of the att and the broader issue of transparency in the international trade in conventional arms’.22 This is followed by a list of tasks that include addressing reporting challenges; reporting and transparency issues; and harnessing information generated by reporting among other things.
It is clearly a body that gets work done, but now faces a test in light of declining reporting rates and transparency among states parties. At the time of csp5 only 42 of 92 states parties due to submit annual reports by that date had done so. Twenty-two countries have not submitted an annual report.23 A growing number of reports are being kept confidential, which is an option available to states parties as specified in the voluntary report templates that were endorsed at csp2. This followed a debate at the first csp about how to interpret the att’s Article 13 on reporting and whether it should be obligatory to make reports publicly available (meaning to other stakeholders beyond fellow states parties and the att Secretariat), or a matter of discretion for each state party. States parties are not required to disclose the reasons for keeping reports private. For such a young treaty, it is very concerning that these problems already exist, as many stakeholders are acknowledging. It will be ever more important that Treaty infrastructure like the wgtr and its meetings are used effectively to ensure that the att’s goal of transparency in the arms trade is met.
2.2 Enter Thematic Discussions
Another tactic to improve the substantive quality of csp discussions are the thematic panels and areas of focus. The focus on the link between the att and the Sustainable Development Goals (sdgs) occurred first at csp3. Presumably this specific initiative emerged from the many references to this link in national statements at csp2. It also, even if inadvertently, reflected the historic concern about the impact of armed violence and conflict, fuelled by arms transfers, on socio-economic development.24 This had been the basis for ultimately unsuccessful efforts to include development as a risk assessment criterion in the Treaty. The thematic panel included presentations from government, civil society, and the United Nations. Fourteen states took the floor afterwards; their statements were heavily focused on the links between the att and sdg 16 (Peace, Justice and Strong Institutions), and sdg 5 (Gender Equality).25
The output was an agreement:
To further explore how Treaty implementation could contribute to the achievement of the sdgs and strengthen the narrative on the benefits of joining the Treaty, the Conference decided that the programme of work for the three Working Groups should address aspects of the linkages between the Treaty and the sdgs that are relevant to their mandates and report on these to the next Conference of States Parties.26
This materalised in the form of a joint meeting between the three att working groups on the topic the following year, which was guided by inputs from an external expert. The report of that meeting helpfully includes a chart outlining links between specific articles of the Treaty and any of the sdgs or their targets.27 It also indicates that working groups should continue to promote and explore these linkages, in an ‘organic’ manner.
While there was no mandate that future csps should also have a thematic focus, the csp4 president chose to continue this trend and selected the topic of diversion. Unlike the previous year, there were now more intersessional and working group meetings occurring that enabled a deeper exploration of the topic in advance of csp4. It also meant that the working groups were able to prepare relevant documents and resources about diversion for adoption at csp4. The wgeti had prepared a list of ‘possible reference documents to be considered by States Parties to prevent and address diversion’28 and a document of ‘Possible measures to prevent and address diversion’29 for the csp to consider. The wgtr put forward a recommendation for endorsement of a ‘three-tier approach to sharing information on diversion, subject to each State’s national laws, practices or policies’.30 This included policy-level exchanges on diversion in the sub-working group on Article 11 of the wgeti; an intersessional exchange of policy-related and relevant operational information via an information exchange portal; and finally, an ‘informal meeting among interested States Parties (and possibly signatory States) to discuss concrete cases of detected or suspected diversion that they are dealing or have dealt with’.31 These documents and recommendations were endorsed at csp4 and, as in Geneva the year before, a thematic panel discussion took place at the conference that was multi-stakeholder in nature, followed by focused statements from the floor.
csp5’s focus on gender and gender-based violence (gbv) has generated what could be the most precise and far-reaching outputs to date. Its president decided on this theme fairly early in the preparatory process and circulated a document of draft decisions for states parties to take at csp5 several months before.32 His intention was that the discussion on this subject not end with the conference. This focus coincided with a broader interest in ‘gender’ across the disarmament community and corresponded with the obligation of states parties to assess for the risk of gbv in att Article 7(4).33 Throughout the csp5 preparatory process, and in the wgeti sessions, states parties and observers provided responses to the draft document or other expert inputs relevant to the subject. Several non-governmental organisations published or shared resources on the subject or held side events and training in the run-up to csp5 to build knowledge on the subject.34 This enabled a thorough engagement with the subject matter in advance of the conference that arguably contributed to a strong outcome.
The package of decisions agreed upon by states parties consists of three categories: representation and participation in future csp meetings; increasing understanding of the gendered impact of armed violence in the context of the att; and steps to enhance implementation of the gbv risk assessment criteria. There are 13 total actions that range from ensuring gender-balanced meeting delegations to detailed discussion in the wgeti sub-working groups on Article 7(4).35
Clearly, instituting a thematic focus has been a successful way to ensure strong content-based discussion and outcomes from csps and intersessional meetings. Doing so has generated dialogue both inside and outside the conference room, for instance at the many side events, publications, and even training that occur in tandem with csps and that are often tailored to the thematic focus. As these are often developed by or in partnership with non-governmental experts, it has also become a mechanism to strengthen their involvement in a governmental process and reinforce multi-stakeholdership.
Outputs appear to be most effective when they are integrated into working groups and a follow-up mechanism or activity is identified. The work on linkages to the sdgs appears to have stalled in any tangible or practical way, for example, or at least, within formal att meetings there are few references to the 2030 Agenda that go beyond acknowledging the relationship between agendas. This may be because of other, higher priority topics to focus on or because the work of implementing linkages needs to occur within government departments and actors. In contrast, the work on diversion has continued, for example, through the implementation of the decisions set out at csp4 including the contribution of the wgeti sub-working group on Article 11 regarding diversion. The informal meeting to discuss concrete cases of detected or suspected diversion took place in 2019, twice — once as an open meeting, and the other closed to observers. At the time of writing, it is likely that diversion prevention, through information exchange, will be the thematic focus of csp6.
The themes can be understood as supporting the achievement of att goals. ‘Prevent and eradicate the illicit trade in conventional arms and prevent their diversion’ is identified in att Article 1 (Goals and Objectives). Research shows that most att states are not implementing well the gbv risk assessment mandated by Article 7(4), for diverse reasons. The numerous guidance resources, open discussions with experts, and not least the agreements made at csp5 in this respect ought to go some way in improving implementation of this aspect of the Treaty.
Like anything, however, it all hinges on implementation and how well these good ideas are actioned. There is also the risk that the busyness of generating resources or having expert panel discussions at international conferences could become a smokescreen for inaction at the national level. States parties should be encouraged to report back and share on how this information and support has made a difference in their practice, or if and how the guides and information lists produced on any of these themes are being used. The recently agreed commitments on gender and gbv are a good opportunity because of their specificity and measurability.
3 But What About Saving Lives?
Let’s return to the original question however: are the csps being used to their full potential to meet the Treaty’s objectives and prevent atrocities? In many ways, this is a challenging question to answer because it requires identifying a direct correlation between the meetings themselves and atrocity prevention. Ostensibly, any measure to universalise the Treaty or improve implementation could be interpreted or argued to be a supportive step in that direction, however minor it seems. As the preceding section has shown, there are many solid outcomes deriving from att meetings. Yet, it cannot be ignored that the Treaty is failing to prevent atrocities, the arms trade is flourishing, weapons make their way into contexts that are prohibited by the att, and the double standard between state practices and legal obligations is ever more pronounced. In her remarks to the csp5, the UN High Representative for Disarmament Affairs Izumi Nakamitsu noted that ‘… it is estimated that the global volume of international transfers of those weapons was 7.8 per cent higher in the period between 2014–2018, compared with the previous 5-year period …’.36 The High Court case brought against the British government has illuminated that there are many layers of legal commitments being breached by its arms transfers to Saudi Arabia.37
The question then becomes: what would need to change for the csps to better help states parties meet the ultimate goal of the att and save lives? The answer which surfaces overwhelmingly in any study of these meetings is that what needs to change is the reluctance of states to discuss compliance gaps where they involve problematic, actual arms transfers such as those that would correspond to their obligations under articles 6 and 7. As one civil society organisation noted as early as 2016,
This week at the Second Conference of States Parties (csp2), states failed to address the arms trade. They did adopt parameters for a Voluntary Trust Fund, as well as working groups on universality, reporting, and implementation. They endorsed and recommended the use of reporting templates (though did not resolve to make them public by obligation). They appointed a permanent head of the Secretariat, adopted the budget for 2017, decided on the dates for csp3 (11–15 September 2017), and endorsed Finland as president for csp3 and Australia, Bulgaria, Guatemala, and Sierra Leone as vice-presidents. These are important decisions that will help facilitate the work of the att. But amidst these administrative matters, there was not a single statement from governments regarding current practice and policy in terms of implementing the Treaty. A few states hinted at their displeasure with the ongoing situation outside the conference room, but none cited particular examples or made suggestions to address this.38
Another organisation made a similar point about csp3: ‘The silence from governments, in particular on Yemen, was deafening. Even though 106 countries attended csp 2017, only Costa Rica explicitly mentioned Yemen by name during the meeting. The war in Yemen is now in its third year, and the country has been bombed to the brink of famine’.39
The silence is not for a lack of evidence. Through reports, side event panels, and media outreach, civil society groups and international organisations like the icrc routinely come prepared with an evidence base that highlights real world impact and would prevent the att from being discussed in a vacuum. For example, there was significant public awareness and media work in advance of csp2 to draw attention to continued arms transfers to South Sudan by att states parties and signatories, and also transfers to Saudi Arabia for use in Yemen.40 It did not go unnoticed that on the penultimate day of csp2, then-UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein released a new report that laid out a number of serious allegations of violations and abuses committed by all sides of the conflict in Yemen.41 Amnesty International had also pointed out that US, Bulgaria, the Czech Republic, France and Italy, were ‘lavishing’ small arms, light weapons, ammunition, armoured vehicles and policing equipment on Egypt, ‘despite a brutal crackdown on dissent by the authorities which has resulted in the unlawful killing of hundreds of protestors, thousands of arrests and reports of torture by detainees since 2013’.42 csp5’s focus on gender-based violence provoked sharing about specific transfers where the arms were used in widespread femicide.
Calls for halting specific arms transfers, or investigating problematic transfers, have been few and far between governments. At csp2, Zambia alone pointed out that many of the governments aiding other states with att implementation efforts are also transferring weapons that result in armed conflict, violence, death and destruction.43 At csp3, Mexico delivered a statement on behalf of 12 countries to request that all att states parties and others ‘abstain from transferring arms to Venezuela until peace has reached the country’. Mexico in its national statement also ‘welcomed the work done by civil society to stigmatize illegitimate arms transfers, while Chile said that it shared the concerns of civil society regarding transfers that violated the att’.44 Costa Rica and Palestine made veiled references to problematic transfers to and of Venezuela and Israel at csp4.45 There were no government statements of this nature at csp5.
There have also been reactions and reprisals. At csp3 a civil society representative criticised ‘irresponsible arms transfers’ authorised to the Philippines. In its statement, it noted that the country, ‘has seen deliberate and widespread killings of alleged drug offenders that appear to be systematic, planned and organised by the authorities’. The following day, the Philippines’ representative to the conference issued a right of reply to the statement, saying that such information is false and ridiculed the group for ‘politicising’ the conference.46
The preceding sections have shown that there is appetite to use the csps as spaces for substantive exchange, to circulate working papers, hold thematic and interactive panels, and even take decisions, such as at csp5, that will change future practice in a meaningful way. Yet that appetite stops short at using the csps as a venue for assessing the legality of specific arms transfers. There could be many reasons for this: political sensitivity; the repercussions of having to end lucrative but potentially illegal transfers if they were spotlighted; national security concerns; deterring large exporters from joining. During informal meetings and exchanges, some states have said (off the record) that csps are not the right place to have a compliance assessment or discussion of that nature.47
There is nothing in the csp mandate established by the att that would preclude or prevent this.
In fact, it could be argued that sub-paragraphs a, b, and d of Article 17 provide sufficient basis for doing so, and that paragraph (g) is intended as something of a catch-all for any activity that would not be covered by the earlier sub-paragraphs. Any consideration of ‘implementation’ ought to include articles 6 and 7, which the wgeti currently does through its sub-working group. There is also nothing in the Rules of Procedure that limit the scope or powers of a csp in a way that would prevent those meetings for being used for this purpose.
There is a precedent for using states parties meetings to address concerns about compliance with the primary objectives of an instrument. It is beyond the scope of this article to do a thorough study of all disarmament treaties and their meeting practices, but two recent examples stand out as particularly relevant. At the First Review Conference of the Convention on Cluster Munitions (ccm) in 2015 states parties adopted an outcome document that condemned recent use of cluster munitions in several countries. The Dubrovnik Declaration48 is in many ways a standard review conference output, in that it takes stock of achievements and reinforces commitment to the relevant instrument, except for the paragraph where it reflects concern over specific incidents of use and calls on ‘any actor subject to allegations of use to fully investigate and clarify the matter. We note that the public reactions of those alleged to have used cluster munitions demonstrate the steadily growing stigma now associated with these weapons’.49 While perhaps not an open floor discussion of problematic behaviour, the inclusion of such specific language in an outcome document was politically challenging and considered a diplomatic achievement for its proponents.50 It provides a documented basis for any further action that states parties would want to pursue and sends a strong signal from the majority of states parties that they will not tolerate behaviour that contradicts the ‘letter and spirit’ of the ccm.
Another example comes from the Chemical Weapons Convention (cwc). Its states parties convened a special csp session in June 2018 where they adopted a decision titled ‘Addressing the Threat from Chemical Weapons Use’.51 The decision condemned specific instances of use but also went a step further by calling on the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (opcw) to put in place arrangements ‘to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic …’. This is the first time that the opcw’s Secretariat was given an attribution mandate, and it did not happen easily or without significant political fallout. Nonetheless, most Western cwc states parties — among them many att states parties — persevered in the spirit of ending impunity.
If ultimately att states parties do not have the political will to use the csps to address problematic arms transfers as a matter of compliance with articles 6 and 7, then Treaty advocates may need to look elsewhere for accountability. The wgeti, including its sub-working group on articles 6 and 7, could be one venue for taking this forward. In theory, csps could also mandate a new body or group, such as a diplomatic group of friends, or consider ways of using the content of annual reports to measure implementation of this part of the Treaty. There have also been important efforts made through human rights instruments and their review mechanisms to hold states parties to account and this might be further explored.52 In some countries civil society groups are pursuing legal recourse to challenge transfer decisions.53 To a large extent civil society is already doing this; to make it more official would require that it be officially requested by states parties of the att Secretariat or another entity, and that seems unlikely.
This article has reviewed the mandate, structure, and nature of the annual conferences of state parties to the att. It has identified several positive outputs that have enabled the conferences, and their related intersessional meetings, to become venues for substantive discussion and exchange in relation to Treaty implementation. This has in particular been linked to the evolution of thematic working groups and thematic focus areas, corresponding to att goals, objectives, and obligations. The meetings all fall short, however, of being used to their full extent to examine ongoing, problematic arms transfers being made by some states parties, and thus fall short of fulfilling their potential. There are different pathways available for states parties and other stakeholders concerned with this. At a minimum, national or joint statements of concern issued by states parties at future csps would send a political signal that a business as usual approach will not be tolerated, as would simply voicing concern about the behaviour of their peers in national statements to the conferences, instead of remaining silent. It would also be a step forward if state parties or signatories suspected of non-compliance could engage more constructively with concerned civil society — whether domestically or while at conferences and intersessional meetings — than they have to date. There could also be ways to leverage reports, either updated initial reports or annual ones, in ways that would speak to problematic arms transfers. There are other actions that might have more ‘teeth’: states parties could, for example, call for a working group to be established that would focus on this aspect of implementation exclusively. A crucial question that would probably surface if this came to pass would be the openness and transparency of any potential group or body, as countries might be more willing to engage in these conversations without civil society in the room. If a working group is too politically challenging, an unofficial diplomatic ‘group of friends’ might be a useful mechanism to identify what would be feasible, while also becoming a channel for dialogue and signalling that att states parties are serious about compliance.
All of the above suggestions require political will however, and undoubtedly many states parties will argue that conversations about actual arms transfers are too sensitive, for either political or security reasons, or that they would deter other major exporters from joining the att. But as turning a blind eye becomes standard practice in att meetings, the original aspirations that drove the Treaty’s process — and are embedded in its text — become farcical and erode the instrument’s credibility.
Neil MacFarquhar, ‘UN Treaty Is First Aimed at Regulating Global Arms Sales’, New York Times, 3 April 2013, https://www.nytimes.com/2013/04/03/world/arms-trade-treaty-approved-at-un.html.
The programme of work for each conference is available on the website of the att Secretariat, www.thearmstradetreaty.org.
Final reports for all att conferences of states parties are available on the website of the att Secretariat, www.thearmstradetreaty.org.
For a more detailed overview of the csp1 preparatory process, see the reporting available on www.controlarms.org.
See https://thearmstradetreaty.org/sponsorship-programme.html for more details.
Detailed reporting is available from the Control Arms Coalition and the Reaching Critical Will programme of the Women’s International League for Peace and Freedom. Other groups, such as the International Action Network on Small Arms, Amnesty International, and Oxfam have less regularly provided coverage or analysis.
The most comprehensive source for official att meeting documentation is the att Secretariat’s website: www.thearmstradetreaty.org.
‘Control Arms Summary, csp 2016 Day One’, 22 August 2016, https://controlarms.org/csp/wp-content/uploads/2018/04/Summary-CSP2-Day-1.pdf.
Allison Pytlak, ‘Room for Improvement in the Room Where it Happens’, att Monitor, 12/3 (10 April 2019), http://reachingcriticalwill.org/images/documents/Disarmament-fora/att/monitor/ATTMonitor12.3.pdf.
The final reports of csp1, csp2, and csp3, as well as civil society reporting, detail this change in official status and evolution of mandate.
Article 5 of the att refers to its General Implementation and includes measures such as the establishment of national control systems, control lists, and contact points. Article 6 (Prohibitions) sets out conditions under which an arms transfer is always prohibited per the Treaty. Article 7 (Export and Export Assessment) outlines the criteria against which exporting states parties must assess a proposed transfer, if the transfer is not already prohibited under Article 6. Article 9 on Transit or Trans-shipment sets out the obligations of states parties when arms transit or are trans-shipped in their jurisdiction. Article 11 addresses Diversion.
The working group chairpersons’ reports to each csp contain summaries of their respective work and recommendations to the conferences. These are all available on the att Secretariat website.
att Working Group on Transparency and Reporting, Co-Chair’s Draft Report to csp5, att /csp5.wgtr/2019/chair/533/Conf.Rep, 26 July 2019.
The att Secretariat maintains statistics on att reporting rates, as does the att Monitor project of the Control Arms Coalition. See https://thearmstradetreaty.org/annual-reports.html and https://attmonitor.org/en/.
Elli Kytömäki, ‘How Joining the Arms Trade Treaty Can Help Advance Development Goals’, Chatham House, December 2014.
Joint Session of the att Working Groups on Sustainable Development Goals (sdgs), 01 June 2018, Summary Report and Way Forward, att/csp4/2018/sec/360/Conf.sdgs, 20 July 2018, pp. 5–8.
att Working Group on Effective Treaty Implementation, Chair’s Draft Report to csp4, att/csp4.wgeti/2018/chair/355/Conf.Rep, 20 July 2018, p. 6.
att Working Group on Transparency and Reporting, Co-Chair’s Draft Report to csp4, att /csp4.wgtr/2018/chair/358/Conf.Rep, 20 July 2018, p. 6.
Working Paper on Gender and Gender-based Violence, att/csp5/2019/pres/410/PM1.Gender gbv, 15 January 2019.
The Women’s International League for Peace and Freedom has been publishing guidance and written materials on this aspect of the att for many years. See http://www.reachingcriticalwill.org/resources/publications-and-research/research-projects/10738-challenging-the-arms-trade for examples. At csp3, the government of Ireland introduced a working paper on gbv in the context of the Arms Trade Treaty. Other more recent examples include: Control Arms Coalition, How to Use the Arms Trade Treaty to Address Gender-based Violence, August 2018; Control Arms Coalition and the International Human Rights Clinic at Harvard Law School, Interpreting the Arms Trade Treaty: International Human Rights Law and Gender-based Violence in Article 7 Risk Assessments, April 2019; International Committee of the Red Cross, International Humanitarian Law and Gender-based Violence in the Context of the Arms Trade Treaty, April 2019. During the intersessional meetings in April 2019, wilpf with the government of Ireland hosted a side event on gbv and a workshop in advance of csp5. In May 2019, Control Arms Coalition and Harvard Law School hosted a three-day training programme for export licensing officials on the gbv criterion of the att.
Ms. Izumi Nakamitsu, ‘Keynote Address to the Fifth Conference of States Parties to the Arms Trade Treaty’, United Nations Office for Disarmament Affairs (unoda), 26 August 2019, https://s3.amazonaws.com/unoda-web/wp-content/uploads/2019/08/HR-keynote-address-CSP5-26-08-19.pdf.
Dominic Dudley, ‘UK Admits More Breaches of Court Order Banning Arms Sales to Saudi Arabia, Says Other Cases Could Follow’, Forbes, 26 September 2019.
See media clippings and press statements from the Control Arms Coalition, https://controlarms.org/csp/csp-2016/.
UN Office of the High Commissioner for Human Rights, ‘Zeid Urges Accountability for Violations in Yemen’, 25 August 2016.
Thaliff Dean, ‘US, EU Accused of Paying Lip Service to Global Arms Treaty’, Inter Press Service, 22 August 2016.
Jefferson Morley, ‘States Denounce Cluster Munitions Use’, Arms Control Today, October 2015, https://www.armscontrol.org/act/2015-09/news/states-denounce-cluster-munitions-use.
opcw News, ‘cwc Conference of the States Parties Adopts Decision Addressing the Threat from Chemical Weapons Use’, 27 June 2018, https://www.opcw.org/media-centre/news/2018/06/cwc-conference-states-parties-adopts-decision-addressing-threat-chemical.
For example, the Women’s International League for Peace and Freedom (wilpf) uses its submissions to the Universal Periodic Review and the Convention on the Elimination of All Forms of Discrimination against Women (cedaw) to document concerns over arms transfers, human rights and gendered impact, and att compliance.
Jamie Doward, ‘Campaigners Head to Court to Stop Arms Sales to Saudi Arabia’, The Guardian, 6 April 2019, https://www.theguardian.com/world/2019/apr/06/campaigners-court-bid-to-stop-uk-arms-sales-to-saudi-arabia.