Deal or no deal? Legal perspectives on current #ArmsTreaty text’s defense cooperation agreements provisions
November 15 2012, 6:59 AM by Lorey Campese
The draft text produced at the end of the July 2012 UN Conference on the Arms Trade Treaty contains many elements necessary for the effective control of the international arms trade. However, it also contains many ambiguities and weaknesses which must now be the focus of work.
In this Article, ATT Legal analyses the wording and effect of Article 5(2).
Article 5(2) – Wording and Effect
Article 5(2) was the focus of much concern on the penultimate day of the July Conference. It provides as follows:
“The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments. This Treaty shall not be cited as grounds for voiding contractual obligations under defence cooperation agreements concluded by States Parties to this Treaty”
Both sentences could create significant loopholes. Taken together, they could allow conventional arms transfers arising under other ‘instruments’ or ‘defence co-operation agreements’ to be removed from the scope of the treaty altogether.
On one hand, the first sentence of Article 5(2) could allow States to enter into or maintain existing ‘instruments’ containing stronger controls than those established in the Arms Trade Treaty. However, it could also allow States to circumvent their obligations under the Arms Trade Treaty. ‘Instruments’ could be interpreted broadly to mean agreements concluded under international law, resolutions, declarations or contracts governed by national law.
The second sentence is extremely ambiguous and has several possible interpretations. Of greatest concern, it could be interpreted to allow a State to circumvent the provisions of the Arms Trade Treaty simply by including a transfer within a ‘Defence Cooperation Agreement’ (DCA).
Depending on its terms, obligations under a DCA could be governed by national or international law. Where DCA obligations arise under international law, the current wording of the text could allow a state to circumvent its obligations under the Arms Trade Treaty. Where DCA obligations arise under national law, Article 27 of the Vienna Convention on the Law of Treaties would, on first sight, apply. Article 27 provides that “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty”. However, Article 27 only applies where a Treaty does not state otherwise. Here, it could be credibly argued that Article 5(2) does state otherwise, so that a DCA can override the provisions of the Treaty.
A more positive interpretation of Article 5(2) is that it simply preserves the availability of remedies for failure to perform a contract. If an agreement is ‘void’ (which means it is deemed never to have existed in the first place), there can be no financial remedies for a state’s failure to perform its contractual obligations. Under this interpretation, Article 5(2) would prevent a State from ‘voiding’ a DCA on the basis that the export of conventional arms under the DCA would violate its obligations under the ATT. However, the export itself would still violate the ATT. To comply with the ATT, a state would therefore need to suspend or terminate the contract, and could be responsible for financially compensating the other party.
If this interpretation is intended, it should be expressed in clearer terms that would not risk an alternative interpretation running counter to the aims and objectives of the Treaty.
Interplay with Article 24
Article 24 provides: “States Parties shall have the right to enter into agreements in relation to the international trade in conventional arms, provided that those agreements are compatible with their obligations under this Treaty and do not undermine the object and purpose of this Treaty”. Questions have been raised about the interrelationship of this Article with Article 5(2).
As currently drafted, the wording of Article 24 is not clear enough to mitigate the potential effects of Article 5(2). In particular:
(a) unless explicitly stated, it is not clear that Article 5(2) is subject to Article 24. A State could argue that agreements and instruments referred to in Article 5(2) are exempted from Article 24;
(b) Article 5(2) applies to instruments and agreements entered into prior to as well as after ratification of the Treaty. Article 24 applies only to agreements entered into after ratification of the Treaty;
(c) Article 24 only relates to ‘agreements’ whereas Article 5(2) relates also to ‘instruments’, which can be defined more broadly.