United Nations Audiovisual Library of International Law

THE ARMS TRADE TREATY

By Peter Woolcott
Permanent Representative of Australia to the United Nations in Geneva
and Ambassador for Disarmament

1. The Historical Context

The Arms Trade Treaty is the first legally-binding instrument ever negotiated in the
United Nations to establish common standards for the international transfer of conventional
weapons. The development of common international standards for the trade of conventional
arms has been a long time in the making, with origins in the League of Nations draft
convention on the arms trade which was never adopted. 1 However, while international law
during the Cold War developed prohibitions on the transfer of chemical, biological and
nuclear weapons, no such progress was to be found with respect to conventional arms.

After the Cold War, the devastating impact of widespread armed violence, particularly in
situations of poverty and extreme inequality, came to the fore of the international
community’s attention. In the early to mid-1990s, to help counter the proliferation of
conventional arms, several sets of guidelines or principles on arms transfers emerged
among groups of countries, which included some of the largest arms exporters. The
Permanent Five (P5) members of the United Nations Security Council and Germany were
the top six leading suppliers of major conventional weapons during 1993-1997. 2

The risk of human rights violations in a recipient country was one of the reasons for
many supplier countries to follow a restrictive arms transfer policy. 3 Recognising that arms
proliferation was a global problem, the United States called on the P5 countries to meet at
senior levels to discuss the establishment of guidelines for transfers of conventional arms.
Despite the P5’s commitment in 1991 to elaborate a set of “Guidelines for Conventional
Arms Transfers” which included a set of arms transfer criteria, serious disagreements meant
that the P5 process ended by 1992.

Meanwhile, in 1991, the United Nations Register of Conventional Arms was established
as the key international mechanism to promote predictability and transparency in the
conventional arms trade. An International Code of Conduct on Arms Transfers developed
by a group of Nobel Peace Prize laureates, led by Dr. Oscar Arias, the former President of
Costa Rica, was launched in 1997. With Western Europe as the second largest arms
exporting region, 4 by 1998, the European Union became the first group of States to accept a
regional Code of Conduct on Arms Exports.

Illicit trafficking was particularly an issue in Africa, Latin America, the Pacific and
South-East Asia. In 1999, a study carried out by the International Committee of the Red
Cross (ICRC) demonstrated that the unregulated availability of weapons was a major
contributing factor to civilian suffering during and after armed conflicts and increased
civilian casualties. 5 As long as weapons were too easily available, violations of

1
SIPRI Yearbook 2007, Armaments, Disarmaments and International Security, Towards an
arms trade treaty?, appendix 10C.
2
SIPRI Yearbook 1998, Armaments, Disarmaments and International Security, Part II:
Military Spending and Armaments, 1997, chapter 8: Transfers of major conventional
weapons, table 8.1.
3
SIPRI Yearbook 1998, Armaments, Disarmaments and International Security, Part II:
Military Spending and Armaments, 1997, chapter 8: Transfers of major conventional
weapons, p. 2.
4
World Military Expenditures and Arms Transfers (WMEAT), 1996, U.S. Arms Control
and Disarmament Agency, p. 21.
5
Arms Availability and the Situation of Civilians in Armed Conflict, International
Committee of the Red Cross, Geneva, June 1999.
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international humanitarian law and human rights law would more likely occur and the
provision of humanitarian and development assistance would be hampered. A 2003 report
by the Small Arms Survey attributed death, injury, violations of human rights, international
humanitarian law, forced displacement and economic collapse, in Fiji, the Solomon Islands
and Papua New Guinea, to the ready availability of conventional weapons. 6

Progress in the United Nations was first realised in the area of small arms and light
weapons, which were seen as the preferred weapon in modern-day internal armed conflicts
and armed violence. A consensus decision to address small arms and light weapons was
achieved at the United Nations Conference on the Illicit Traffic in Small Arms and Light
Weapons in All Its Aspects, which took place from 9 to 20 July 2001. The 2001 Conference
resulted in the non-binding United Nations Programme of Action to Prevent, Combat, and
Eradicate the Illicit Trade in Small Arms and Light Weapons, in All Its Aspects.

By 2006, international attention shifted back to concerns over conventional weapons as a

whole. The fact that the international trade in bananas was more tightly regulated under
international law than conventional arms was beginning to resonate strongly with many
States.

Following a civil society campaign supported by the group of Nobel Peace Prize
Laureates, seven Governments (Argentina, Australia, Costa Rica, Finland, Japan, Kenya
and the United Kingdom of Great Britain and Northern Ireland – known as the “co-
authors”) sponsored the first United Nations General Assembly resolution on an arms trade
treaty in 2006. 7 The resolution recognised that the absence of common international
standards on the import, export and transfer of conventional arms was a contributory factor
to conflict, the displacement of people, crime and terrorism as well as undermining peace,
reconciliation, safety, security, stability and sustainable development.

The road from 2006 to the adoption of the Arms Trade Treaty (ATT) on 2 April 2013
was not straightforward. States approached the negotiations from a wide range of
perspectives. Exporting States saw the ATT as a framework to allow their defence
industries to participate more transparently in the legitimate international arms trade and
level the playing field with an agreed set of standards. Along with transit and trans-
shipment States, they wanted to ensure that any new regulatory burdens were not excessive.
Importing States wanted an ATT that brought greater clarity to their ability to choose a
defence mix in pursuit of their legitimate right to self-defence.

There were also States affected by armed violence and instability which were exacerbated
as a result of illicit arms transfers. These States saw practical benefit to their national
security and the security of their communities through a strong and well implemented ATT.
There were other States which had long supported the achievement of strong universal
humanitarian outcomes from the ATT. Regional organisations were also key stakeholders
given existing instruments related to transfer controls and arms transfers at regional levels.

Political will to reach a consensus on the Arms Trade Treaty was never a foregone
conclusion. The United Nations had not seen success in negotiating a multilateral arms
control agreement since the 1990s. 8 The adoption of the ATT by an overwhelming majority
of States in the General Assembly was, therefore, a historic achievement for the United
Nations and multilateralism.

2. The Negotiating History

6
Philip Alpers and Conor Twyford, “Small Arms in the Pacific”, Occasional Paper No. 8,
Small Arms Survey, Geneva, 2003.
7
General Assembly resolution 61/89 of 6 December 2006, adopted by 153 votes, 1 against
and 24 abstentions (Towards an arms trade treaty: establishing common international
standards for the import, export and transfer of conventional arms).
8
The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of
Anti-Personnel Mines and on their destruction and the Convention on Cluster Munitions
were each negotiated outside the United Nations system.
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The ATT negotiating process started with the General Assembly’s request for the
Secretary-General to seek views from Member States on the feasibility, scope and draft
parameters of an arms trade treaty. This yielded replies from around 100 States in 2007,
signalling the interest and importance of this first step towards a treaty.

A Group of Governmental Experts (GGE) was also established to examine the feasibility,
scope and draft parameters of a legally binding instrument. The GGE met for three sessions
in 2008 under the chairmanship of Ambassador Roberto García Moritán of Argentina.
Based on the recommendation of the GGE, the United Nations General Assembly decided
to establish an Open-Ended Working Group (OEWG) to further consider the matter. The
OEWG met twice in 2009, again with Ambassador Moritán as Chair, producing a
procedural report with no recommendations.

The General Assembly, in its resolution 64/48 of 2 December 2009, decided to convene a
United Nations Conference on the Arms Trade Treaty to meet for four consecutive weeks in
2012 to elaborate a legally binding instrument on the highest possible common international
standards for the transfer of conventional arms. 9 In particular, it was decided that the
Diplomatic Conference would be undertaken in an open and transparent manner, on the
basis of consensus, to achieve a strong and robust treaty. 10 Three substantive Preparatory
Committee sessions were held in 2010 and 2011. 11 A final fourth session, held from 13 to
17 February 2012, focussed largely on procedural matters.

The Diplomatic Conference was held in New York from 2 to 27 July 2012 under the
Presidency of Ambassador Moritán. The Conference, however, was delayed by almost two
days due to questions concerning the status and participatory rights of the Holy See and
Palestine. A compromise was reached which allowed the Conference to open on 3 July. On
9 July, a provisional programme of work was approved which established two main
committees, working in parallel until 20 July, to conduct negotiations on the elements of the
ATT. On 26 July 2012, the President’s comprehensive draft treaty text 12 was presented but
did not find consensus. Divergent views over key areas of the text remained until the last
hours of the Conference. In the end, some delegations argued for more time to examine the
draft text.

In its resolution 67/234A of 24 December 2012, the United Nations General Assembly
decided to convene the Final United Nations Conference on the Arms Trade Treaty from 18
to 28 March 2013, with the 26 July 2012 draft treaty text being the basis for future work.
The General Assembly also decided that the Final Conference would be governed by the
July 2012 Conference’s rules of procedure, in an open and transparent manner, utilising the
modalities of the July 2012 Conference, applied mutatis mutandis. Ambassador Peter
Woolcott of Australia was nominated President-designate of the Final Conference.

Delegates and civil society were well prepared leading into the 2013 Final Conference.
The 26 July 2012 text was known intimately and its impact on particular national interests
was well understood. With only nine working days allocated for the Final Conference, it
was critical for the Conference to get to work without delay.

When the Final Conference opened on 18 March, the issue of the status of the Holy See
and Palestinian delegations had been quietly settled. A novel arrangement had been agreed
by which the Holy See and the State of Palestine would be seated alphabetically among
United Nations Member States with speaking rights during the Conference, but short of an
“all States” arrangement. Both the Holy See and the State of Palestine noted that this
compromise was reached because they did not want to block negotiations towards a strong
and effective ATT, but said this arrangement would not be a precedent for future United

9
The resolution was adopted by 151 votes, 1 against and 20 abstentions.
10
General Assembly resolution 64/48, paragraph 5.
11
The Preparatory Committee meetings, chaired by Ambassador Moritán, were held on 12-
23 July 2010, 27 February-3 March 2011 and 11-15 July 2011.
12
A/CONF/217/CRP.1.
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Nations meetings. This result demonstrated that New York delegations recognised that the
negotiations needed to get to work quickly. This was a key factor in helping preserve the
confidence of delegations in the negotiations – a reminder of the value in multilateral
negotiations of having settled procedure.

After the build-up and disappointment of the July 2012 Conference, there was
considerable political will to collectively reach an outcome at the Final Conference. During
the Final Conference, delegates were provided with three draft texts of the President which
were progressively stronger than the last, with the goal of broadening the supportive
constituency and bringing all delegations along. Facilitators were also appointed by the
President to conduct informal discussions on key aspects of the text, which was a useful
process in confirming where a likely consensus would be. 13 Some of these discussions led
to a significant reshaping of elements of the 26 July 2012 text as well as adding important
new elements. However, some discussions indicated that there could be little further
development of a particular issue.

As a result, the treaty text was balanced and as strong as it could be while still holding
together the disparate interests demonstrated at the Conference. No delegation left the Final
Conference getting everything they wanted, but no one walked away empty-handed. While
there was initially a considerable divergence of views, delegations ultimately demonstrated
a preparedness to take ownership of the process and compromise in order to achieve an
effective and balanced treaty. Delegations understood that balance was vital to ensuring the
legitimacy of the final treaty text.

Throughout the negotiating process, a consensus outcome remained the goal. While this
was not ultimately achieved, the Final Conference showed what was possible when
delegations engaged in a consensus-governed process and were determined to strive for a
negotiated consensus outcome. On the final evening of 28 March 2013, the President ruled
that due to the objections of the delegations of Iran (Islamic Republic of), Democratic
People’s Republic of Korea and the Syrian Arab Republic, there was not a consensus in the
Final Conference for the adoption of the draft treaty text.

Although the Conference did not adopt the treaty, the negotiating process produced a
robust text with almost universal acceptance. It was the willingness of States to stay the
course with the United Nations system that helped guarantee the broadest possible
constituency of States for the ATT, adding to its legitimacy and potential for effective
action into the future.

General Assembly resolution 67/234A, which had convened the Final Conference, had a
built-in redundancy, an off-ramp. The President was required by the resolution to report to
the General Assembly on the outcome as soon as possible after the Final Conference
concluded. This allowed delegations legitimately to take the text to the General Assembly
for adoption. This proved to be the measure of last resort. On 2 April 2013, Ambassador
Woolcott’s final text of the ATT was adopted by General Assembly resolution 67/234B. 14

3. The Treaty’s Key Provisions

13
Ambassador Mari Amano (Japan) – Brokering; Ambassador Paul Beijer (Sweden) – Scope;
Mr. Robert Dondisch (Mexico) – Diversion; Mr. Bouchaib Eloumni (Morocco) – Preamble,
principles, object and purpose; Ambassador Dell Higgie (New Zealand) – General
implementation and relationship with international organisations; Ambassador Paul van den
Ijssel (Netherlands) – Record-keeping and reporting; Ambassador Federico Perazza
(Uruguay) – Final provisions; Mr. Zahid Rastam (Malaysia) – Transit or trans-shipment; Ms.
Shorna Kay Richards and Ms. Michelle Walker (Jamaica) – Prohibitions; Mr. Rob Wensley
(South Africa) – International cooperation and international assistance; and Ambassador
Ritta Resch (Finland) – Other considerations.
14
The resolution was adopted by 154 votes, 3 against and 23 abstentions.
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The ATT will prove its impact and effectiveness in how it requires States to display
responsibility and transparency in arms transfers with greater respect for international law.
Under article 5 on the general implementation of the Treaty, States parties are encouraged
to apply the provisions of the Treaty to the broadest range of conventional arms.

The minimum scope of arms covered by the Treaty begins with article 2, paragraph 1,
which sets out the categories of conventional arms to which the Treaty shall apply, being
the seven categories covered by the United Nations Register of Conventional Arms 15 and an
eighth category on small arms and light weapons.

Article 3 of the Treaty requires States parties to regulate the export of

ammunition/munitions fired, launched or delivered by the conventional arms covered under
article 2, paragraph 1, and to apply articles 6 and 7 prior to authorising their export.
Similarly, article 4 requires States parties to regulate the export of parts and components
where the export is in a form that provides the capability to assemble conventional arms
covered under article 2, paragraph 1, and to apply articles 6 and 7 prior to authorising their
export.

Article 6 addresses explicitly prohibitions against arms transfers that would be contrary to
international legal obligations, or where the State knows the arms would be used in the
commission of genocide, crimes against humanity and certain war crimes. This provision
sets a clear benchmark to allow States parties to effectively and consistently implement
these prohibitions.

However, it was recognised that a potential export could still cause serious humanitarian
consequences, even if it was not prohibited at the outset under article 6. Therefore, article 7
of the Treaty sets the standard upon which a State is obliged to refuse the export of arms
based on a risk assessment. This export risk assessment requires a State to undertake a
complex balancing of a range of considerations that, when applied, will ensure better
regulation of the weapons industry. This risk assessment framework recognises that the
impact on civilians needs to be an essential consideration of how the weapons industry
conducts its business.

Under article 7, export authorities will need to consider the potential that the arms or
items:
− would contribute to, or undermine, peace and security; and
− could be used to
- commit or facilitate a serious violation of international humanitarian law or
international human rights law;
- commit or facilitate an act constituting an offence under international
conventions or protocols relating to terrorism or transnational organised crime, to
which the exporting State is a party,
− and taking into account the risk of the arms being used to commit serious acts of
gender-based violence or violence against women and children.

Article 7, paragraph 3, requires that if, after conducting this risk assessment and
considering available mitigation measures, the exporting State party determines that there is
an overriding risk of any of the negative consequences in article 7, paragraph 1, the export
shall not be authorised. The concept of “overriding risk” was introduced in the 26 July 2012
text and remained in the final Treaty text.

What will also be critical for the success of the ATT is the implementation of article 11 to
prevent the diversion of transferred arms covered under article 2, paragraph 1. The
prevention of diversion of conventional arms is one of the stated objectives of the Treaty
outlined in article 1. Efforts to mitigate the risk and consequences of diversion will make

15
That is, battle tanks, armoured combat vehicles, large-calibre artillery systems, combat
aircraft, attack helicopters, warships, and missiles and missile launchers.

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the most difference to the security, stability and development of communities which are
vulnerable to and seriously impacted by arms diverted for illicit use. Article 11 requires
exporting States to assess the risk of transferred arms being diverted and consider
mitigation measures. Cooperation and information exchange between exporting, transit,
trans-shipment, and importing States must be promoted in order to mitigate the risk of
diversion. Measures to address a diversion of transferred arms when it is detected, including
by alerting potentially affected States parties, also need to be encouraged.

Under articles 12 and 13, States parties are required to maintain national records of
exports of conventional arms and to submit reports on implementation of the ATT. The
ATT’s reporting requirements and regular dialogue among States parties during
Conferences of States Parties are additional mechanisms to achieve the ATT’s stated
purpose to promote cooperation, transparency and responsible action in the international
trade in conventional arms, thereby building confidence among States parties.

Under article 20, an amendment to the Treaty cannot be proposed until six years after its
entry into force. This will allow time for the Treaty to be implemented by States parties,
lessons learned to be considered and gaps in implementation to be identified. Thereafter,
amendments can only be considered by a Conference of States Parties every three years.
Every effort will be made to achieve a consensus decision on each amendment. However, if
all efforts at consensus have been exhausted, and no agreement reached, the amendment
shall, as a last resort, be adopted by a three-quarters majority at the Conference. As the
Treaty’s implementation unfolds and States parties are increasingly confident in the system,
there is potential for States parties to further develop and improve the Treaty over time by
way of amendment.

4. The Influence of the Treaty

The Arms Trade Treaty matters to a broad cross-section of countries. The successful
conclusion of the negotiating process on 2 April 2013 was just the first step. The
humanitarian and security potential of this Treaty will only be realised when countries at all
points in the supply-chain, both major arms producing States and developing countries
alike, join and implement the Treaty.

The Treaty’s impact will be measured by how it is implemented on the ground. The
political will of States to ensure the Treaty’s robust implementation will need to be
maintained. Many States will need to allocate resources to strengthen their own national
systems for controlling imports and exports and to meet reporting requirements set out in
the ATT. For many States, they will not be able to do this alone. For those States in a
position to do so, their willingness to support and assist other States which may require
legislative, technical or financial assistance or institutional capacity-building in order to
implement the ATT will also be crucial. In the future, States’ progress in meeting ATT
obligations will need to be monitored.

The ATT is already prompting States to take stock of their existing transfer controls – be
they exporting, importing, or transit States – and to identify weaknesses and gaps. 16 When
the Treaty enters into force and as the regular Conference of States Parties take hold, it will
underscore that the discussions and scrutiny of the arms trade have firmly found a place on
the multilateral agenda.

Related Materials

A. Documents

16
Sarah Parker, “Breaking New Ground? The Arms Trade Treaty” in Small Arms Survey
2014: Women and Guns, Cambridge University Press, Cambridge, 2014, p. 99.

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Guidelines for Conventional Arms Transfers, Letter dated 22 November 1991 from the
leader of the delegation of the United Kingdom of Great Britain and Northern Ireland
addressed to the President of the Conference on Disarmament transmitting the official text
of the Communiqué issued following the meeting held in London on 17 and 18 October
1991 between representatives of the five States permanent members of the United Nations
Security Council concerning arms transfers and non-proliferation (CD/1113, 26 November
1991), annex.

United Nations Register of Conventional Arms, General Assembly resolution 46/36L of

9 December 1991, annex.

International Code of Conduct on Arms Transfers, New York, May 1997.

European Union Code of Conduct on Arms Exports, Brussels, 5 June 1998.

United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in
Small Arms and Light Weapons in All Its Aspects, Report of the United Nations
Conference on Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New
York, 9-20 July 2001 (A/CONF.192/15), chapter IV.

General Assembly resolution 61/89 of 6 December 2006 (Towards an arms trade treaty:
establishing common international standards for the import, export and transfer of
conventional arms).

Report of the Group of Governmental Experts to examine the feasibility, scope and draft
parameters for a comprehensive, legally binding instrument establishing common
international standards for the import, export and transfer of conventional arms, 26 August
2008 (A/63/334).

Report of the Open-ended Working Group towards an Arms Trade Treaty: establishing
common international standards for the import, export and transfer of conventional arms,
20 July 2009 (A/AC.277/2009/1).

General Assembly resolution 64/48 of 2 December 2009 (The arms trade treaty).

Report of the Preparatory Committee for the United Nations Conference on the Arms Trade
Treaty, 7 March 2012 (A/CONF.217/1).

Draft treaty text submitted by the President of the Conference on the Arms Trade Treaty on
26 July 2012 (A/CONF.217/CRP.1).

General Assembly resolution 67/234A on 24 December 2012 (The arms trade treaty).

Report of the Final United Nations Conference on the Arms Trade Treaty, 2 April 2013
(A/CONF.217/2013/2).

General Assembly resolution 67/234B on 2 April 2013 (The arms trade treaty).

B. Doctrine

International Committee of the Red Cross, Arms availability and the situation of civilians in
armed conflict: a study presented by the ICRC, Geneva, June 1999.

Small Arms Survey, P. Alpers and C. Twyford, Small Arms in the Pacific, Occasional
Paper No. 8, Geneva, 2003.

Small Arms Survey, S. Parker, “Breaking New Ground? The Arms Trade Treaty” in Small
Arms Survey 2014: Women and Guns, Cambridge University Press, Cambridge, 2014.

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Stockholm International Peace Research Institute, SIPRI Yearbook 1998, Armaments,

Disarmaments and International Security, Part II: Military Spending and Armaments, 1997,
chapter 8: Transfers of major conventional weapons, Oxford University Press, Oxford,
1998.

Stockholm International Peace Research Institute, SIPRI Yearbook 2007, Armaments,

Disarmaments and International Security, Towards an arms trade treaty?, appendix 10C,
Oxford University Press, Oxford, 2007.

U.S. Arms Control and Disarmament Agency, World Military Expenditures and Arms
Transfers (WMEAT), 1996.

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