Rather than proscribe transfers of any one category of conventional weapons, the ATT delineates the circumstances under which arms exports would be prohibited, for example, in violation of UN Security Council sanctions or arms embargoes. Central to the rationale for the ATT is the nexus between the end-use or end-user of arms exports and the risk of their misuse.

In simple terms, exporting states ought not to authorize arms exports when there is a risk that they may be misused.

While the ATT specifically prohibits certain arms transfers when a risk of misuse is identified, it is understood to be an arms control regime, not a disarmament one. In fact, the Treaty explicitly recognizes the licit trade in conventional weapons as a legitimate pursuit for arms exporting states and focuses its restrictions on illicit, irresponsible and/or unscrupulous arms transfers.

Treaty adoption and entry into force

The UN General Assembly adopted the ATT on April 2nd, 2013, and the treaty opened for state signatures on June 3rd, 2013. Following ratification by 50 states, as required by Article 22 of the treaty, it entered into force on December 24th, 2014.

In 1997 a group of Nobel Laureates led by Oscar Arias had met in New York to develop a code of conduct around the global arms trade. Discussions continued involving a greater number of stakeholders from in and out of government and, in 2001, the UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects was adopted as a non-legally binding policy instrument.

In December 2006, the United Kingdom introduced Resolution 61/89, which asked the UN Secretary-General to seek the views of member states on the feasibility of a “comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms” and to report on those views back to the General Assembly.

In late 2009, a decision was made by the UN General Assembly, through resolution A/RES/64/48, to hold a multilateral conference in 2012 “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms”.

Types of conventional weapons covered

Per Article 2 of the ATT, the regulations established by the treaty are applicable to eight categories of conventional weapons, namely:

• Battle tanks;
• Armoured combat vehicles;
• Large-calibre artillery systems;
• Combat aircraft;
• Attack helicopters;
• Warships;
• Missiles and missile launchers; and
• Small arms and light weapons.

In addition, Article 3 extends the treaty’s applicability to ammunition “fired, launched or delivered by the conventional arms” under the eight categories specified under Article 2. Likewise, Article 4 includes parts and components “where the export is in a form that provides the capability to assemble the conventional arms” covered by the treaty.

Treaty universalization

Achieving universal membership is an explicit objective of the treaty, on the understanding that the regime’s effectiveness will be enhanced as more states agree to abide by the common set of standards it establishes. As of July 1st, 2009, there are 103 states parties, 33 signatories that are not state parties, and 57 states that have not joined the treaty.

On June 19, 2019, Canada deposited its instrument of accession to the ATT at the United Nations, set to become the 104th state party to the treaty when accession takes effect after 90 days.

Treaty text

The ATT text consists of a preamble outlining the primary issues underpinning the treaty, a statement of principles to guide the actions of state parties and 28 articles.

Among other considerations, the preamble recognizes both “the need to prevent and eradicate the illicit trade in conventional arms and to prevent their diversion to the illicit market, or for unauthorized end use and end users, including in the commission of terrorist acts”, and “the legitimate political, security, economic and commercial interests of States in the international trade in conventional arms.”

The preamble also points to the “security, social, economic and humanitarian consequences of the illicit and unregulated trade in conventional arms” and draws attention to the fact that “civilians, particularly women and children, account for the vast majority of those adversely affected by armed conflict and armed violence.”

The ATT is also explicit in acknowledging the legitimate possession of certain types of conventional weapons “for recreational, cultural, historical, and sporting activities.”

Treaty principles include states’ individual and collective right to self-defense, as well as the legitimate interest of states in acquiring conventional weapons to exercise said right; the principle of non-intervention “in matters which are essentially within the domestic jurisdiction of any State”; and the consistent, objective and non-discriminatory implementation of the ATT by all states parties.

Key Provisions

The ATT lists five criteria by which proposed exports must be evaluated: peace and security, human suffering (according to the standards of International Humanitarian Law), respect for human rights (according to the standards of International Human Rights Law), terrorism, and transnational organized crime.

Moreover, the ATT is the first international agreement to recognize and address the link between conventional arms transfers and gender-based violence. Exporting states must take into account the risk of the arms or munitions “being used to commit or facilitate serious acts of gender-based violence or serious acts of violence against women and children.”

Article 2 of the ATT, which defines the scope of the treaty, is explicit about its applicability to all military exports under the eight categories of conventional weapons it recognizes. Furthermore, article 5 calls for the ATT to be implemented in a consistent, objective, and non-discriminatory manner.

The ATT, under Article 12, obligates exporting countries to maintain national records of the authorization or the export of weapons for at least 10 years. In addition, in Article 11, the ATT requires exporters to assess the risk of diversion of arms exports, understood as a change in the intended end use or end user.

The ATT also includes the obligation, under Article 10, to regulate the brokering or arms transfers, as well as the transit or transshipment of conventional weapons in territories or waters under its jurisdiction.

Articles 6 and 7, which deal, respectively, with prohibitions and risk assessments, are at the core of actual authorizations or denials of arms exports by states parties.

Under Article 6, a State Party is not to authorize any transfer of conventional arms covered, ammunition or parts and components covered by the treaty, if:

1. The transfer 5 would violate its obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes.
2. The transfer would violate its relevant international obligations under international agreements to which it is a Party, in particular those relating to the transfer of, or illicit trafficking in, conventional arms.
3. It has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

Article 7 defines the risk assessment process that each exporting state must undertake prior to authorizing an arms export. Specifically, exporting states must assess “the potential” that the conventional arms being considered for export:

1. Would contribute to or undermine peace and security.
2. Could be used to:
   1. commit or facilitate a serious violation of international humanitarian law;
   2. commit or facilitate a serious violation of international human rights law;
   3. commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a Party;
   4. commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a Party.

In this context, exporting states must also consider whether measures can be taken to mitigate these risks. If the exporting state determines that the negative consequences of said risks remain after considering possible mitigating measures, the export shall not be authorized. If, after the export has taken place, the exporting state becomes aware of “new relevant information” it is “encouraged” to reassess the authorization of the export.

Criticism

The Arms Trade Treaty has been the subject of criticism from various sectors, including during the negotiation stage and since its entry into force. Two types of criticism have stood out:

Gun groups, such as the US-based National Rifle Association, as well as sports shooting associations in other countries, have long contended that the treaty infringes upon the rights of lawful, domestic gun owners. While these concerns are unfounded as the treaty deals with international commerce, not domestic ownership, this line of criticism has been persistent at Conferences of States Parties and other ATT meetings, which are routinely attended not only by NGOs supportive of the objectives and spirit of the treaty but also by those who oppose it.

The treaty’s effectiveness has also been the subject of criticism. An article published by The Economist at the time of the 4th Conference of States Parties in August 2018, argued that the ATT had had “little impact”. The military intervention in Yemen by a regional coalition led by Saudi Arabia has been the cause of heavy criticisms about compliance with the ATT by states parties, such as the United Kingdom and France, which have continued exporting weapons to Saudi Arabia and other coalition partners despite vast evidence that they are being used against civilian targets and despite vocal domestic and international opposition.