Has anyone been following the UN negotiations over a new Arms Trade Treaty?
Colleagues of mine from the Graduate Institute in Geneva actually attended the July 2-27, 2012 negotiations in New York and wrote this interesting report about the conference’s failure (apparently: US and Russia to blame) as well as the current draft text.
I was struck by two things:
(1) The absence of any reference at all to trade agreements, the WTO or principles of trade law.
Of course, we have the exception in GATT Art. XXI for “any action which [a WTO member] considers necessary for the protection of its essential security interests … relating to the traffic in arms, ammunition and implements of war”. But does that carve-out absolutely all “arms trade” from WTO disciplines? Does it exempt all trade restrictions, on the import or export side, that WTO members may impose on purely private, commercial arms trade, that is cross-border sales between or destined for private operators (not e.g. armed forces or law enforcement authorities where the “essential security interests” are clearer)? Plus, if it does, could an Arms Trade Treaty, which seems to both liberalize some arms trade (e.g. for legitimate self-defence and peacekeeping operations) and (mainly) impose trade restrictions on other arms trade (e.g. to facilitate genocide or crimes against humanity), not benefit somewhat from trade law insights? (Art. 4.3 does refer to non-discrimination in export authorization assessments and so does Art. 5 for the general implementation of the treaty).
For the Kimberley Scheme on Conflict Diamonds, the WTO enacted a waiver for trade restrictions on non-participants (of which I have always been skeptical). Would we need a WTO waiver also for this Arms Trade Treaty?
(2) This is yet another failure to conclude a traditional, legally binding treaty exclusively between states in the context of a traditional international organization, the UN (the meeting is reconvened for March 2013, so an agreement might still be reached but it would require consensus of all participants). There is already the 1996 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (41 participants), but that is an example of “informal international lawmaking”. Is the collapse of the UN Arms Trade Treaty negotiations further proof that the traditional way of making international law (formal treaty – in formal IO – exclusively between formal state representatives) is failing and outdated?