International Law of Trade or Disarmament?
Is the international law evolving itself or is it defying the very basic principles of law? Quintessentially, it’s a product of agreements between the states and of the consistent conduct, which constitute the customary law. The list of its new subjects, however, is increasingly growing and is including non-state actors and multinational companies with global presence which haven’t been party to what states agree and have nothing to do with customary law emanating out of consistent practice and acquiesce. The very element of consent that forms the sine qua non of pacta sunt servanda is ominously absent from the equation. With this inherent legal imperfection, the pace of international treaties is on the rise. From the International Criminal Court to the Arms Trade Treaty (ATT), the subjects of international law are non-conventional. The principal purpose of the instant article is, however, not to examine the legal inadequacies of the Arms Trade Treaty, but to explore and analyze the policy and the content of the newly-introduced treaty.
Salient Features of the Treaty
The ATT is not a very voluminous legal instrument; its salient features along with some analysis are outlined hereunder:
Before analyzing the Treaty itself, it’s pertinent to put in a few words about the genus of the Treaty which is apparently a bit uncanny as it finds little support from the content of the Treaty and by the general legal framework of the UN. In this regard, the third recital of the preamble of the Treaty warrants careful reading as it links the Treaty to Article 26 of the Charter of the United Nations that establishes a textual relationship of the Treaty to the disarmament regime envisioned by the framers of the Charter.
This textual relationship is not very well founded as in the first place Article 26 of the UN Charter mandated the Security Council and not the comity of nations to oversee and envision disarmament.
Secondly, the linkage of the ATT with disarmament contradicts with the content of the Treaty, which is primarily designed to regulate trade of arms and is not a step in the direction of arms disarmament (by arms’ destruction or diversion).
Thirdly, the legal consequence of the aforementioned two points is that the ATT be put in the province of ‘trade and commercial treaties’ rather than in the set of disarmament arrangements. In the instant case, the problem of modern international law, in which international executive authority vested in international organizations, upstages the will of international legislative authority exercised by plenipotentiaries on behalf of their respective states has become prominent because by classifying the ATT as a disarmament treaty and not a trade treaty, the legal consequences have been connected with international peace and security, not with development and globalization.
On the policy side, the things are equally confusing. The disarmament’s narrative in the international relations is not ideal. The UN Charter empowered the members of Security Council to do the disarmament. The members of the Security Council, however, chose to segregate between the non-conventional or weapons of mass destruction (nuclear, chemical and biological) and conventional weapons. They then prioritized the non-conventional over the conventional weapons keeping in view their own interests. Besides, the very members (the US and erstwhile USSR) of the UN Security Council employed arms supply as a foreign policy objective in their respective foreign policies resulting in a disarmament campaign backed by state-interests rather than by any principles-based policy.
3. Defining Conventional Weapons
The conventional weapons are as such not defined anywhere in the international law; they are better understood as all weapons other than non-conventional weapons i.e. nuclear, biological and chemical. Article 5(3) of the ATT, however, urges the states to apply it to the ‘broadest range of conventional arms’. This expansive and inclusive approach of defining conventional arms is to be read with Articles 2, 3 and 4 of the ATT along with UN’s ‘Disarmament: A Basic Guide’ (hereinafter the Guide).
Article 2 defines the scope of the ATT to include the following weapons:
(a) battle tanks,
(b) armoured combat vehicles,
(c) large caliber systems,
(d) combat aircraft,
(e) attack helicopters,
(g) missiles and missile launchers, and
(h) small arms and light weapons.
Articles 3 and 4 include the ammunition and munitions of the weapons enumerated earlier and their parts and components. Some very fundamental and conceptual information on conventional weapons has been supplied by the Guide, which explains conventional weapons as those weapons which kill, injure or incapacitate ‘through explosives, kinetic energy or incendiaries’. The Guide also explains the difference between the small arms and light weapons. According to it, the former can be used by one person whereas the latter is used by two or more persons. The purpose of explaining the whole gamut of conventional weapons is to underline the significance of the ATT, which will have potential to affect supply of armed forces’ conventional capabilities whether the procurements are made on government-to-government basis (Foreign Military Sales) or through industry contracts (Direct Commercial Sales) mechanisms.
Three prohibitions have been mentioned in Article 6 of the ATT. The first prohibition links the trade of arms to arms embargoes duly processed by the UN Security Council. The second prohibition is related to illicit trafficking of arms while the third is wide and primarily covers the field of international humanitarian law (the conduct of war) and the modern international criminal law.
Interestingly, the three prohibitions are further linked to the international agreements entered into by the state parties; the prohibitions typically evince the case of fortification of one international law rule by another. The problem with this approach is that it makes international law a maze of layers which end up blocking each other and at the time of interpretation of the legal provisions, issues of sequencing and determining the intention of the states are to be dealt with.
5. Encumbrances before Delivery
Article 7 of the ATT that deals with the export side of the arms articulates three-tiered encumbrances. The first encumbrance is related to an assessment, which is done on very wide and ambiguous grounds as the five listed grounds are too general and subjective to be applied. The grounds range from considerations of peace and security to human rights and terrorism.
The second encumbrance is that after the assessment, the exporting state should consider factoring in the mitigating measures to minimize any risk of abuse.
The third encumbrance is about formal authorization.
To top these encumbrances, on the basis of ‘new information’, the exporting state is authorized to reassess the authorization. The case of encumbrances is peculiar and interesting. The reason for this peculiarity is obvious: the trend of international arms trade is heavily in favour of developed countries, which supply arms to developing nations (e.g. the Grimmett Report published by Congress Research Service collects and collates the data on the trends in detail). Instead of considering any encumbrance at the time of receiving advance payments and supply orders (as is usually done in international commercial contracts) by the developed exporter states, the post-payment encumbrances have been incorporated in the ATT. The imbalance of rights and obligations goes without saying. In the present form, no wonder, many states (including Pakistan) have not signed the ATT.
6. Entry into Force
The ATT has not yet entered into force. According to Article 22 of this Treaty, it will come into force after three months of the fiftieth ratification. The delayed effectuation provided some respite to countries not signing the ATT, however, the things started taking off after the signing of the ATT by the US on 25th September, 2013 and accordingly the states have started treating it more seriously.
UN Secretary General, Ban Ki-moon, once observed: ‘The world is over-armed and the peace is under-funded’. Unfortunately, this is true for the modern world, which is shaped by avarice and self-interest. The quest of powerful states to use international law as a tool to perpetuate their interests instead of serving any noble principles as contained in the UN Charter has turned international law into a liability rather than an asset in the international relations. The said trend, apparently, has been preserved and not reversed by the ATT.