Brokering and implementation of the ATT
July 14 2011, 4:30 PM by Ray Acheson, Reaching Critical Will
Argentina, Australia, Bangladesh, Belgium, CARICOM, Costa Rica, European Union, Fiji, Ghana, Ireland, Jamaica, Liechtenstein, Nigeria, Pacific Island States, Saint Lucia, Senegal, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, and Zambia are in favour of including brokering in the implementation section of the treaty. For the most part, these states argue that brokering should be subject to the same rigorous controls and standards as export, import, and transit and that brokering activities should require official authorization and scrutiny.
There are some nuances in position among these delegations. For example, Zambia’s delegation suggested the treaty should include a requirement by states to establish a clear legal framework for, inter alia, extraterritorial jurisdiction over brokers; licencing of brokering activities; disclosure of brokers and licence applications; and steps to ensure brokers don’t breach UN arms embargoes.
Meanwhile, the European Union suggested that state parties should “put in place adequate measures that would allow them, where necessary, to monitor and control brokering of arms covered by the scope of the treaty. Such measures should include the obligation to obtain an authorization prior to brokering activity. States Parties should apply the same parameters as for exports when assessing a brokering application.”
The Belgian, Germany, and Swedish delegations, however, noted that brokering per se is not an illegal activity. They suggested that only unauthorized brokering, or brokering activities that, as Sweden said, “lead to irresponsible or illegal” transfers of arms, need to be controlled. The German delegation explained that it does not issue licences to brokers but to manufacturing companies, for which “brokering is one of the natural operations during their transaction.” Belgium’s delegation emphasized that brokers would need a permit granted by the relevant authority and that illicit brokering should be considered a separate issue, and considered under the enforcement section of the treaty.
Other states are hesitant about including brokering in the treaty at all. The US delegation said it is too complicated and that the treaty should simply say that states have to establish for themselves a means to regulate brokering. Japan’s delegation said states need to be “realistic” on the brokering issue, while the Egyptian delegation said that brokering is not relevant to the treaty and states should have national regulations to deal with it already.
However, because arms brokers play such a pivotal role in the arms trade, leaving them unregulated by the ATT would be as irresponsible as leaving out ammunition. The International Committee of the Red Cross (ICRC) highlighted the importance of including brokering in the implementation provisions of the treaty. “Some arms brokers contribute to the exacerbation of armed conflicts and facilitate continued violations. They are able to continue their illicit arms transfer activities with impunity by exploiting loopholes and inconsistencies in national and regional mechanisms,” explained ICRC representative Peter Herby. “If the activities of brokers are not controlled, than the Arms Trade Treaty will be easily undermined by the activities of unscrupulous brokers operating outside of any regulatory framework or from the territory of States with little or no controls in place.” In this context, the ICRC recommended that the treaty ensure that brokering is covered by a uniform, global, and legally-binding regulatory framework and that brokering activities and arms transfers are subject to the same criteria under the ATT, “including an assessment of whether the recipient is likely to commit serious violations of IHL with the weapons.”
In its 2005 report on arms brokering, Groupe de recherche et d’information sur la paix et la sécurité (GRIP) outlined the necessity, benefits, and potential formulations for global regulations on brokering. The ATT could seek to include the following provisions for national control systems on brokering:
• a clear legal definition on persons, entities, and activities subject to national controls;
• a system of registration able to screen those wishing to engage in the trade of military equipment, including brokering activities;
• a system of licensing of brokering transactions, where decisions should be taken according to explicit and comprehensive criteria;
• adequate systems of state monitoring, including, inter alia, mandatory record-keeping and reporting on the part of the broker and post-delivery verification mechanisms; and
• the establishment of penalties, such as fines or imprisonment, for violations of national brokering regulations.
The chair’s draft also brought up the issue of criminalizing illicit brokering under the treaty. Australia, Grenada, and Trinidad and Tobago supported this idea, though others, including Canada, Colombia, Lichtenstein, and Zimbabwe expressed concern with the implication in the chair’s text that state parties would have an obligation to control the activities of brokers that are citizens of their country regardless of those brokers’ physical location. They cautioned that this raises issues about the application of laws extraterritorially. Cuba’s delegation argued that it is too difficult to criminalize any activities under the ATT and that this should be dealt with elsewhere.
However, states without national controls on brokering are attractive bases of operation for brokers seeking to circumvent government oversight on their activities. GRIP outlines the benefits of instituting regulations over such brokers, suggesting that “comprehensive extraterritorial controls would be based on a license requirement for ‘third-country’ brokering activities conducted abroad by a country’s nationals and permanent residents.”
National legislation and regional cooperation would be greatly supplemented by a legally-binding ATT that includes brokering. Such a treaty would help close the gaps and loopholes in national and regional measures, which vary greatly in scope and effectiveness between countries. Global standards on the regulation of arms brokering and related activities would go a long way to ensuring that the ATT is truly effective in preventing irresponsible and illicit trade in conventional weapons. As the representative of INTERPOL said on day three, international mechanisms should not be the missing link that prevents effective regulation of the arms trade.