Executive summary

Recent developments emphasise the continued trend towards increasing legislative control of the trade in defence and security materials. In April, a further 18 countries (including France, Germany, Italy, Spain and the UK) ratified the Arms Trade Treaty, which will require an exporting state to consider, among other things, the human rights implications of any proposed transfer of weaponry, ammunition or components. In the same month, the UK government opened a public consultation on whether to introduce mandatory pre-licensing registration of UK arms brokers. We summarise these developments below.

The ATT requires an exporting state to consider the human rights implications of any arms transfer

1.       Background and ratification process

1.1 In April 2013, the United Nations General Assembly adopted the Arms Trade Treaty (the ATT). Since then, over 100 states have signed the ATT and 31 have gone on to ratify it. Of those, 18 states (including France, Germany, Italy, Spain and the UK) ratified the ATT last month. This is a significant step towards the ATT entering into force, which is conditional upon the ratification of 50 states.

1.2 Notably, Germany and the UK have already applied the key ATT provisions (Articles 6 and 7, described below) pending the ATT's entry into force. In Germany, existing laws controlling the arms trade already go further than the ATT. The UK has been particularly active in its support of the ATT, both during its negotiation phase and subsequently to encourage ratification by other states.

1.3 To date, several other significant defence manufacturing nations have signed but are yet to ratify the ATT. These include Austria, Belgium, Switzerland and the United States. Currently, it is not known when those states will ratify the ATT.

1.4 In the United States, there has been much debate regarding the ATT's perceived implications for the constitutional right of individuals to bear arms and US national security interests. It remains to be seen whether the US Senate will approve ratification.

1.5 Notably, the states choosing not to sign the ATT include China, India, Israel and Russia, each a large manufacturer and (except India) exporter of arms.

The ATT aims to ban transfers used for war crimes to prevent illicit trade

2.       Purpose, scope and key provisions of the ATT

2.1 Purpose. In summary, the ATT seeks to:

  1. regulate the international trade in conventional arms, including a prohibition against transferring any arms in the knowledge that the recipient will use them to commit war crimes;
  2. prevent the diversion of arms and munitions to illicit trade; and
  3. oblige states to implement national control systems for, and keep related records of, its assessment and approval of conventional arms exports.

2.2 Scope. The ATT applies to the transfer of a wide range of conventional arms, specifically:

  1. armoured combat vehicles, including battle tanks;
  2. combat aircraft, including attack helicopters;
  3. warships;
  4. large-calibre artillery systems;
  5. missiles and missile launchers; and
  6. small arms and light weapons (see Article 2) (together, Arms).

2.3 Further, the ATT applies to both parts and components and ammunition/munitions for the Arms listed above (together, Items).

2.4 The term 'transfer' is also defined broadly as the export, import, transit, trans-shipment or brokering of Arms for international trade (Article 2{2)). The ATI expressly does not apply to the international movement of Arms by or on behalf of a state for its own use, provided that those Arms remain under that state's ownership (Article 2(3)).

2.5 Key provisions. Where a transfer is contemplated:

a. the exporting state must not authorise that transfer if it would:

  1. violate that state's obligations under measures adopted by the UN Security Council, especially arms embargoes;
  2. violate its obligations under international agreements, especially as to the illicit trafficking of arms; or
  3. be made in the knowledge that the Arms 'would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions...or other war crimes' (Article 6); and

b. if the transfer is not prohibited, the exporting state must assess the potential that the Arms or Items:

  1. would contribute to or undermine peace and security; and
  2. could be used to commit or facilitate:
  1. a serious violation of international humanitarian (or human rights) law;
  2. an offence under international conventions or protocols regarding terrorism; or
  3. an offence under international conventions or protocols regarding organised crime (Article 7).

2.6 Following that assessment, if the exporting state is not satisfied that it can suitably mitigate and if it identifies an 'overriding risk' of the consequences descnbed above, that state must not authorise the transfer of those Arms or Items.

3. The UK may introduce additional formalities for arms brokers

3.1 Also in April, the UK government launched a public consultation on the potential introduction of a pre-licensing register of arms brokers (ie those who arrange or facilitate the supply of military goods between overseas countries).

3.2 Brokering is already a regulated activity, for which an export control licence is necessary. If introduced, the pre-licensing register would be an additional step: licence applications would still be considered against the Consolidated EU and National Aims Export Licensing Criteria. Advocates fur a publicly-available pre-licensing register argue that it would improve transparency, permit assessment of an applicant's suitability to engage in brokering and improve enforcement of controls.

3.3 The government's call for evidence identifies various issues with the proposal, including:

  1. confidentiality and commercial sensitivity if specific export licences were publicly ascribed to specific persons;
  2. whether foreign governments would see the register as a de facto 'white list' of 'approved' UK brokers, which could then disadvantage UK businesses not subject to registration:
  3. how to assess broker suitability, noting the consequences for, and risk of legal challenge by, unsuccessful applicants; and
  4. the fact that most other EU member states (including major exporters Germany, France, Sweden and Italy) do not require pre-licensing registration .

3.4 This public consultation will close at the end of May and the government has promised its official response by September 2014.