The meme of the ‘weak’ Arms Trade Treaty

The Arms Trade Treaty is a bad bargain that will give dictators and the like something of enduring value in return for nothing in particular

ATT - giving something of enduring value in return for nothing in particular?
Ted Bromund
On 27 July 2012 09:41

With only a day to go, the U.N. Arms Trade Treaty (ATT) conference is increasingly looking like a failure. Sentiment in the halls fluctuates too fast to make reporting on its every twitch worthwhile – the latest rumor is that the entire affair will go back to the U.N. General Assembly for a two-year extension of its negotiating mandate – but one thing is clear: if there is a treaty, it is not likely to make the treaty-backing NGOs happy.

The meme of the day is that the latest draft of the ATT is far too weak. The NGOs are right now handing out a one-pager urging delegates to “Go for Gold Not Loopholes,” with the Olympic rings filled in with their wish list.

The Olympic reference is only fitting: the dominance of British NGOs here, and on Twitter, is remarkable. That’s partly an artifact of the dominance of the English language, of course, but it also reflects reality that the ATT has a place in British politics that it has nowhere else in the world.

I have to confess that I find this difficult to understand.  But what I find even more difficult to understand is the idea that the current treaty draft is somehow particularly weak. Of course the current draft would do nothing to stop Russia from arming Syria. But even if the NGOs got everything they want, that treaty would not stop Russia either.

The error of the treaty’s supporters is this – they believe that better-drafted laws stop crime. Wrong. Cops on the beat stop crime. You can have the best-written laws in the world, but without enforcement, the law is merely words.

All the discussion at this conference about treaty implementation – and all the NGO grumbling about loopholes – is irrelevant, because none of it relates to the real world.

In the ATT’s realm, the problems of the world do not exist because of inadequate regulation. They exist because there are too many states that supply arms to terrorists or abuse their own citizens as a deliberate act of policy, or allow illicit arms trafficking because they lack the ability to stop it.

Let’s get this clear: This conference, like the U.N., is based on sovereign states. And when those states submitted their views on the ATT, they wanted one thing out of it. Not higher standards on arms exports, and not respect for human rights. They wanted the ATT to recognize their national right to buy, sell, and transfer arms. That is not my interpretation. It is what the U.N. Institute for Disarmament Research found in 2007 when it analyzed all the views that had been submitted.

So when Control Arms complains that one flaw in the current draft is that it allows states to “make their own judgements irrespective of the criteria” in the treaty, what they are really complaining about is something that has been inherent in the treaty from Day One: far from stopping the worst aspects of the arms trade, the treaty will tend to legitimize them.

You can include as many human rights standards as you wish, but in a world of sovereign states, a national right to buy, sell, and transfer means the bad actors will not be restrained, because they will pocket the right you have conceded them and ignore the standards you are trying to impose.

What the NGOs really dislike is not the illicit arms trade. It is sovereignty. And that raises much larger concerns, such as the creeping take-over of arms control by a worldview that rejects the sovereign nation-state, historically the only government that is compatible with liberty, democracy, and security.

But it is worth pausing for a moment over the problems of the ATT, because they reflect the deficiencies of a particular kind of treaty, which I call an A/B treaty. Structurally, A/B treaties contain two boxes.

Box A contains things that are basically good or worthwhile. In the case of the ATT, it is the idea that states should not support terrorism or slaughter their own people. In the case of the U.N. Convention on the Law of the Sea (LOST), it is freedom of navigation. In the case of the first Additional Protocol to the Geneva Convention (1977), it is the idea that militaries should limit their attacks to military objectives and avoid indiscriminate attacks on civilians.

But Box B is less satisfactory. In the case of the ATT, it contains the idea that dictatorships as well as democracies should have the recognized right to buy, sell, and transfer arms. In the case of LOST, it is the payments required under Article 82 to the International Seabed Authority, and their ultimate preferential distribution to developing and landlocked countries. In the case of the 1977 Protocol, it is the grant of combatant status to irregular forces that do not distinguish themselves from the civilian population.

What makes A/B treaties sinister is that they are a bargain: the democratic world asks everyone else to agree to A, and in exchange everyone else gets B.

If you are Venezuela, you get the right to buy arms from Iran, and in return you are supposed to behave better. If you are Rwanda, you accept freedom of navigation, and in return you get a payoff from the Authority. If you are Syria, you accept the 1977 standards, and in return you win an elevated status for the PLO.

But this is a bad bargain for the world’s democracies, because it amounts to giving something of enduring value for nothing in particular.

Rwanda has had nothing to do with the elaboration or the protection of the freedom of navigation, which actually serves its interests too: why does it deserve a payoff for acknowledging that long-developed freedom?

Recognizing Venezuela’s right to buy lots of guns is not just irrelevant to improving their behavior: it actually helps them repress their own people and attack their neighbors. And getting Syria to accept an obligation not to attack civilians is meaningless, while the gift to the PLO (and Hamas, Hezbollah and the like) empowers them both on the battlefield and in the court of world opinion.

This A/B point of view is even infiltrating treaties that were originally conceived on completely different lines. As my colleague Baker Spring points out, the Non-Proliferation Treaty was originally about – yes – preventing nuclear proliferation. It is now increasingly conceived of as an A/B treaty: preventing nuclear proliferation in Box A, and nuclear disarmament and the right to peaceful nuclear energy in Box B. This allows proliferators like Iran an easy out: claim their right to nuclear energy is inherent, not subject to their obligation not to proliferate.

So, yes, the current draft of the ATT is weak.  Given the A/B structure common to bad treaties, it has to be weak. What is most regrettable is not that it is weak. It is that the rise of the ATT process suggests that we have not seen the last of these ‘let’s make a deal’ treaties. And please don’t say that all treaties are bargains.

Good treaties impose proportional obligations on and grant proportional benefits to their parties; ones that serve to advance agreed upon purposes.

Bad treaties, such as the ATT, are either inherently contradictory or will become so contradictory in practice that the benefits and obligations are no longer proportional and actually serve to undermine the purposes they ostensibly are designed to advance. This is because below the surface there is no genuine agreement regarding their purposes.  And that is what makes them weak treaties – and bad bargains.

Ted Bromund is senior research fellow in The Margaret Thatcher Center for Freedom, at the Washington-based think tank, The Heritage Foundation

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