Committees on Arms ExportsWritten evidence from Dr Neil Cooper, Peace Studies, University of Bradford

SUBMISSION TO COMMITTEES ON ARMS EXPORT CONTROLS: ARMS TRADE TREATIES AND THE LESSONS OF HISTORY1

Abstract

1. Much of the discussion on the Arms Trade Treaty tends to locate it as (a) part of a set of post-Cold War initiatives to regulate the defence trade (UN Arms Register, UN Programme of Action on Small Arms etc) and (b) as a creature of campaigning work by NGOs supported by like-minded states and certain defence industry actors. These factors are certainly important in understanding both the genesis of the ATT agenda and the modalities of the negotiation process. However, for a more nuanced understanding of the ATT and both its potentials and disadvantages it is necessary to also locate the current negotiations in a much longer history of attempts to develop international regulation of the arms trade, the factors that underpinned such initiatives and the problems they encountered. This submission will therefore (a) review some of the lessons that can be derived from earlier attempts to regulate the international defence trade and (b) draw on this longer history to evaluate both the limits and potentials of any future ATT.

Contextualising the ATT

2. The ATT is the latest in a long line of attempts to regulate the international arms trade, many of which pre-date the end of the Cold War. This includes the 1890 Brussels Act; the 1919 St Germain Convention and the 1925 Geneva Traffic Act (neither of which received enough ratifications to enter into force); the 1950 Tripartite Declaration and Near East Arms Co-ordinating Committee established to operationalise the Declaration and the US/Soviet Conventional Arms Transfer Talks in the late 1970s. This submission will discuss the lessons to be derived from the first four of these initiatives.

3. The 1890 Brussels Act was principally an anti-slavery agreement but also included restrictions on the exports of firearms, powder and ammunition aimed at preventing their use in the slave trade and limiting their “pernicious and preponderating part” in “internal wars between the native tribes.2 Support for the treaty was generated, in part, by what today would be described as a pan-European civil society campaign rooted in ethical concerns for the colonised. The treaty was also agreed in a period that saw the development of bans or restrictions on weapons such as Dum Dum bullets whose use was considered to be morally questionable. To this extent the treaty might be said to have reflected a values-based approach to arms regulation that, in its concern with arms and morality, if not in its language, bears some similarity with the agenda of “humanitarian arms control” that has emerged in the post-Cold War era. However, British government support for the Act was as much a function of concerns about the impact of a burgeoning small arms trade to Africa on security and prosperity. As one British colonial official noted at the time, restrictions on the firearms trade to Africa reflected imperial concern to “avoid the development and pacification of this great continent …..[being] carried out in the face of an enormous population, the majority of whom will probably be armed with first-class breech-loading rifles”.3

4. It should also be noted that the Brussels Act and initiatives to restrict morally problematic weapons actually took place in an era generally characterised as having “the fewest restraints and regulations on the arms trade in modern history”.4 One lesson from this period then, is that international regulation to govern the defence trade is not always consonant with a shift to a more restrictive or “ethical” approach to defence exports in general.

5. The 1919 St Germain Convention for the Control of the Trade in Arms and Ammunition was motivated in part by Allied concern to prevent surplus weapons stocks from World War One being cascaded down to problem actors. Additionally, it also mirrored the Brussels Act in that its aim, as summarised by a sceptical US official, was “to diminish the power of resistance of the natives to the spread and consolidation of the authority of certain powers”.5 Accordingly, the 1919 convention imposed far stricter restrictions on sales to areas of concern to the imperial powers and a ban on arms shipments to “any country which refuses to accept the tutelage under which it has been placed”.6 Indeed, even though the convention never came into force the European powers informally agreed to carry out its provisions in Africa and the Middle East. Entry into force was not achieved mainly because the US refused to ratify the agreement. This was due to: American concerns about the impact of proposed restrictions on supplies to non-signatories in its Latin American backyard; concerns about implementation requirements that envisaged the provision of information to a Central Information Office under the auspices of the League of Nations; and a sense that the agreement was at odds with America’s laissez faire approach to the regulation of private business.

6. Further negotiations led to what became the Geneva Traffic Convention of 1925. Once again however, the Convention failed to achieve the necessary ratifications to come into effect. Some states did ratify the convention unconditionally (eg China, Egypt and Venezuela) but others did so on condition that it was ratified by certain other states. This, combined with opposition from importers and the failure of the US to ratify until the mid-1930s effectively doomed the convention. Nevertheless, the negotiations did have important legacy effects that should not be overlooked. In particular, proposals for a licensing system for defence exports discussed at both St Germain and Geneva were widely adopted by individual states particularly in the 1930s as the crisis of capitalism created a space for campaigners to reprise earlier criticisms of the role played by arms merchants prior to World War One.

7. There are a number of lessons to be drawn from the 1919 and 1925 initiatives:

(i)Agreement is good but ratification is paramount.

(ii)The US has a poor history of ratifying conventional arms trade agreements, either failing to do so completely (the Brussels Act, St Germain) or only doing so late in the day (the Geneva Traffic Act). Of course, past behaviour is not necessarily a predictor of future behaviour.

(iii)Following on from the latter point, don’t ignore the power of Congress.

(iv)A successful agreement will require buy-in from key non-producers and importers.

(v)Implementation issues can help bury a treaty if not thought through but implementation agendas (eg in the form of licensing requirements) may also survive after death.

(vi)Timing is key to a formal agreement: an agreement that was too early for the US in 1919 and 1925 was too late for everyone else by the mid-30s.

(vii)A failed initiative can be revived and even failed treaties may be successful in developing normative consensus on key principles to govern the arms trade. Thus, whilst ratification is paramount and timing is key, agreement should not be pursued simply for its own sake. Dead treaties can be reborn and even if they are killed off again, they can still have important legacy effects.

8. The Cold War is generally characterised as a virtual free-for-all in terms of intra-bloc arms sales. However, there were strong restraints imposed on East-West transfers of defence and dual-use goods both at the national level and in fora such as COCOM (Coordinating Committee for Multilateral Export Controls). An additional initiative in this period was the 1950 Tripartite Declaration between the US, Britain and France. This aimed to regulate defence sales to the Middle East and was given substance through the creation of the top secret Near Easter Arms Control Committee (NEACC) as a forum for consultation between the three states (and, from December 1955, Italy). There was also a more informal arrangement by which states such as Canada and Belgium regularly provided information on sales to the region and occasionally consulted with the US on specific sales. The guiding rationale for the Declaration and the creation of NEACC was to (a) strengthen the ability of states in the Middle East to resist Soviet aggression and (b) to maintain an arms balance between Israel and the Arab states. In addition the NEACC Charter also noted that decisions on arms sales would take into account the role of arms transfers in internal security and included a commitment that arms aid should not have a detrimental effect on spending to support economic and social development. In effect however, the concerns regarding internal stability and development became dead letter elements of the regime, only rarely being discussed. Even the ability of states to resist Soviet aggression was rarely considered explicitly. In practice, the regime essentially focussed on maintaining an arms balance between Israel and the Arab states, with the French arguing (prior to Suez) that Israel was at a disadvantage and the US maintaining Israel already had superior military forces. Although NEACC continued meeting well into the 1960s, after the Suez crisis it effectively became more of a diplomatic ritual than a meaningful policy forum.

9. There are a number of observations that can be made about the operation of the regime:

(i)Arms transfer decisions were essentially considered through the lens of inter-state/intra-regional security rather than values. There was little linkage made, as in the Brussels Act, between regulating trade and fostering civilisation, nor to internal security (despite the token reference in the NEACC document). Effectively this was a Cold War regime that simply applied the dominant metaphor of superpower balance to the Middle East arena. In addition, it was mainly major weapons sales that were problematised rather than the threats to colonial order posed by small arms that were the principal concern in earlier efforts to regulate the defence trade. This highlights the way discussions on regime creation and implementation are influenced by contemporary models of thinking that are so central to the era that they are simply assumed rather than become the object of discussion.

(ii)Formal membership of a regime is not the only indicator of its success as other actors may be encouraged to adopt certain regime practices.

(iii)In the early years of the regime, when it operated relatively successfully, export decisions were not discussed in simple binary terms of approval or rejection. Instead, the alternative of either reducing deliveries or spacing them out over a longer period were a regular form of compromise. There is a risk that actors can “game” such a system if it becomes formalised but it is, nevertheless, important to acknowledge this as an approach that may have merit in certain cases.

(iv)The process of implementation can transform commitments made on paper into dead letter commitments. This again highlights the importance of ensuring good implementation frameworks and transparency (something missing in the case of NEACC);

(v)The ultimate failure of the Tripartite Declaration highlights the difficulties of implementation even when a regime consists of a small group of relatively like-minded states. The challenges for an expanded regime are obvious.

(vi)Discussions on sales to Israel were made more difficult because, as the French complained, there was no commonly agreed methodology for measuring either balance or the impact of a particular arms transfer on an armaments balance. It is highly unlikely that such an agreed methodology will emerge as part of any ATT agreement. However, the UK government could support work outside of the ATT framework designed to develop and promote model methodologies that could be used to frame discussions on eg the sustainable development or human rights implications of particular transfers. This could represent an important supplement to any formal agreement.

(vii)Sales agreements made prior to the Declaration were permitted. Consequently, transfers were approved that were contrary to the principles of the regime and these sales were then cited as justification for additional exports on the grounds they were needed in order to resurrect an armaments balance that had been upset by the original transfers. This may be a problem faced by any putative ATT.

The Current Framework of International Regulation

10. It is important to be realistic about the difference any future ATT is likely to have on defence export licensing practices, not least because overly optimistic claims may influence both the politics of negotiation and judgements about the effectiveness of any treaty that emerges. There are a number of factors that suggest the treaty may, in the short-term, have a relatively limited impact on global approaches to export licensing.

11. First, it is sometimes suggested that the absence of a global agreement means the international arms market is unregulated. However, much of the discussion on the ATT has assumed that any criteria agreed will be less restrictive than either those operated by the EU or the USA. Between them, these actors account for an estimated 64% of major weapons sales in the period 2006–10.7 In addition, it seems likely that states will retain responsibility for interpreting any criteria agreed. As noted above, even a narrowly drawn regime such as the Tripartite Declaration was often unable to reach agreement on what common criteria meant in practice. Differences in interpretation of supposedly common criteria have also been a feature of the EU Code/Common Position. In the short-term therefore, the effect at the global level, on the practice of export licensing decisions may not be as significant as supporters hope and critics fear.

12. Second, the post-Cold War growth in formal international regulation has, ironically, coincided with a relative decline in certain kinds of restraint, particularly with regard to the willingness of states to impose qualitative restrictions on the sale of top-of-the-range equipment. This is largely a function of the fact that commercial arguments for sales have grown in salience relative to ideological or security arguments against them. Indeed, it is worth noting that defence suppliers in the UK and Europe have, at least in part, supported the ATT on the assumption that common global export criteria would help them gain market share by reducing the comparative advantage other suppliers gain from being less scrupulous about who they sell to. At the same time, it has also been suggested that the defence companies of countries that are perceived to operate less rigorous export policies (eg China) may benefit from the “kitemark” effect of an ATT and either be able to sell into new markets or to raise prices. Clearly, both of these views about the effects of the ATT cannot hold at the same time, but they again point to the fact that supporters who envisage the ATT introducing significant restraints on the global defence market may be disappointed, at least in the short-term.

13. Third, formal international regulation (sometimes presented as part of efforts to restrain the defence trade) has also coincided with active efforts to reduce the regulatory restraints governing arms sales. Notable recent initiatives along these lines include the commitment of the Obama administration to overhaul the US export control system, the defence trade cooperation treaties signed by the US with the UK and Australia and the EU directive on intra-community transfers which aims to simplify export procedures to member states. For better or worse, this process is likely to continue irrespective of the outcome of negotiations over the ATT.

14. Fourth, partly because of the factors noted above, the post-Cold War proliferation of formal international regulatory initiatives aimed at managing the defence trade has done little to constrain global defence exports in absolute terms. For example, global exports of major conventional weapons were 24% higher in real terms for the period 2006–2010 than for the preceding 2001–05 period.8

15. Despite the factors noted above however, there are still arguments for supporting the attempt to develop an ATT:

(i)One of the notable successes of the negotiations to date has been that they have already helped nurture an epistemic community of experts who are beginning the long process of developing a common language and sets of expectations about how to regulate the defence trade. Indeed, initiatives such as the EU’s support for UNIDIR’s programme of regional seminars on the ATT have already begun to facilitate this process and should be maintained.

(ii)Whilst problem arms sales may be a function of corruption or deliberate state policy, they can sometimes simply reflect poor knowledge of international regulation or inadequate state capacity. To the extent that the ATT process addresses this issue by building in funding for capacity-building initiatives there are likely to be clear benefits.

(iii)It is clear that any eventual ATT will essentially be four treaties in one (a trade treaty, a national security treaty, a human security treaty and an implementation treaty). An ATT that turns out to be more of a trade treaty than a human security treaty may be of questionable worth. However, as long as the human security and implementation dimensions remain relatively strong there is the potential for any future ATT to establish both a relatively high set of normative principles by which to judge defence exports and some kind of framework for discussing adherence to such principles. If such a treaty is eventually agreed then, over the medium to longer term, this may possibly help promote a new normative consensus capable of influencing both the practice of formal members and even non-members.

October 2011

1 This submission draws on research on the history of arms trade regulation funded by the British Academy and TREAT.

2 Cited in Burns (ed.), Encyclopedia of Arms Control and Disarmament, New York: Scribners, p. 1329.

3 Cited in R.W. Beachey, “The arms trade in East Africa in the late nineteenth century”, The Journal of African History, Vol. 3, No. 3, 1962, p. 453.

4 Keith Krause and Mary K. MacDonald, “Regulating Arms Sales Through World War II”, in Burns, op. cit, p. 712.

5 Office of the Foreign Trade Adviser, April 7 1922.

6 David R. Stone, “Imperialism and Sovereignty: The League of Nations’ Drive to Control the Global Arms Trade”, Journal of Contemporary History, 35 (2), 2000: 213-230.

7 SIPRI, SIPRI Yearbook 2011, Oxford: OUP, 2011, p. 273 and 285.

8 Ibid., p. 271.

Prepared 12th July 2012