Every modern war threatens to involve half the world, bring disaster to world economy, and blot out civilization. The question is urgent then: What will be done about the armaments industry?
engelbrecht and hanighen, Merchants of Death (1934)1
1 Introduction
Regulation of the international arms trade was promulgated following the Second World War, in particular for the preservation of international peace and security. The drafters of the 1945 United Nations (UN) Charter were aware of the risks posed by an unregulated arms industry. This led them to instruct the UN Security Council and the Military Staff Committee under Article 26 to establish a system for the regulation of armaments to ensure ‘the least diversion of armaments of the world’s human and economic resources’.2 However, during subsequent decades, the conduct of arms exporting States tended to be primarily governed by nonbinding rules.3 This issue was addressed in December 2014, when the UN Arms Trade Treaty (att) entered into force as a legally binding instrument, fulfilling the definition of an international agreement governed by public international law, being purported to regulate the conventional arms trade’s “transfer” activities of ‘export, import, transit,
The origin of att in public international law is clearly manifest in its text, which includes repeated citing of the UN Charter in the preamble, along with international human rights law, and international humanitarian law.7 Moreover, att prescribes a number of international procedures for the peaceful settlement of pertinent disputes.8 However, the relationship between the att (which is substantively and procedurally a trade and security regulating treaty) and international trade law remains unclear, particularly as the att alludes neither to the wto law, nor the core obligations of international trade law. However, the att does (albeit briefly and indirectly) refer to the principle of non-discrimination when maintaining that the treaty should be implemented in “non-discriminatory manner”.9 Despite regulation of the conventional arms trade being recognised as vital for international trade, peace and security, pertinent studies of the legal and international relations aspects have been “surprisingly limited”.10 This chapter therefore contends that the absence of international trade obligations from the att presents a number of issues in urgent need of examination, i.e. if an att exporting State Party has determined that ‘there is an overriding risk of any of the negative consequences’ of
Nonetheless, should an att State Party, which is also a wto Member State, refuse this authorisation, its conduct would be considered as follows. Firstly, it would violate Article xi:1 of the wto General Agreement on Tariffs and Trade (gatt).12 Secondly, it would violate the att preambular principle of acting in accordance with ‘the responsibility of all States, in accordance with their international obligations, to effectively regulate the international trade in conventional arms’.13 Thirdly, it would raise a conflict of obligation, particularly since differing international rules apply to the conventional arms trade; for instance, Article 6:2 of the att: ‘a State Party shall not authorize any transfer of conventional arms … if the transfer would violate its relevant international obligations under international agreements to which it is a Party’. This primarily refers to jus ad bellum and jus in bello rules, although (as stated above) export restrictions would violate the core international trade law obligations of wto/att states.
An equitable conflict appears in the relationship between wto national security exceptions and att, primarily due to its remaining undecided whether the security exceptions under gatt Article xxi:b apply to all trade in conventional arms during times of war and peace. Thus, it is crucial to explore the applicability of gatt Article xxi:b to the international trade in conventional arms, as arms traded on the illicit market have generally been legally traded during times of relative peace, before being diverted and exploited for use in conflicts as they arise.14 Conventional arms (i.e. ammunitions, parts, and components) represent an international industry worth several billions of US dollars and, as such, are freely traded between States and merchants. This raises the issue of how these could be completely exempted from wto law, due to their potential for being used for legitimate security purposes, or illegally traded on illicit markets,15 i.e. how can tradeable and legally permitted goods be exempted from international trade law?
According to the att timeline, 2021 is the starting year for any interested State Party to propose amendments to this treaty.18 This indicates that scholarly evaluation of att it is now timely, in order to assist with such proposals. Therefore, this chapter undertakes: firstly, a critical overview of att, secondly, an in-depth examination of att and its relationship with international trade law, by listing its findings and recommendations. In addition, practitioners will find recommendations for reforming the att to assist States Parties in administering their arms export control systems.
2 The Arms Trade Treaty and International Trade Law
This section examines whether international trade rules have been regarded as binding parameters for a potential multilateral arms trade treaty. It has been generally acknowledged that prior to the adoption of the att by the UN General Assembly in April 2013, there was a considerably greater number of binding
The 2006 Resolution further requested that the UN Secretary-General seek additional consultations, as well as establish a group of governmental experts to draft a legally binding instrument.23 The Group of Governmental Experts (the Experts) submitted a report to the UN Secretary-General in mid-2008 concerning “the feasibility, scope, and draft parameters” for a potential arms trade treaty, which observed that ‘global arms production and trade constituted a significant contribution to the economy and employment in a number of countries [and] trade in arms had become globalized and more competitive’.24 However, the Experts also noted that the conventional arms trade has ‘caused immense human suffering and political instability in different parts of the world [and] that combating illicit trade and unlawful transfers to non-State actors must be adequately addressed’.25 Furthermore, when it came
The Experts recalled the key principles of the UN Disarmament Commission Guidelines including, ‘ensuring that the level of armaments is commensurate with [States’] legitimate self-defence and security requirements, including their ability to participate in UN peacekeeping operations’.27 Additionally, they stated that such a treaty could, if ‘non-discriminatory and resistant to political misuse’, both prove feasible and remain within the parameters of the UN Charter.28 The Experts concluded by stating the need to undertake further consideration of two issues, i.e. ‘that there were different motivations for conventional arms production and acquisition, and that weapons being traded on the illicit markets most often started out as legally traded weapons’.29 They also pointed out that ‘to prevent diversion of conventional arms … all States [should] ensure that their national systems and internal controls are at the highest possible standards’.30
The issues highlighted by the Experts were subsequently addressed by an Open-ended Working Group, established by a General Assembly resolution in late 2008.31 The Group stated that, following the Experts’ report, a number of further elements should be considered for ‘establishing common international standards for the import, export and transfer of conventional arms which would provide a balance giving benefit to all’. In addition, the principles of the UN Charter and ‘other existing international obligations’ should remain ‘at the centre of such considerations’.32 Between 2010 and 2013, these constitutive elements were envisaged, presented and debated by the UN Member States at four Preparatory Committees, and two Conferences in 2012 and 2013.33
2.1 The Scope and Parameters of the Arms Trade Treaty
‘The Compilation of Views on the Elements of an Arms Trade Treaty’ for the UN Conference on the att of 2012 constitutes a significant UN document relating to the att negotiation, one that demonstrates the concerns of a number of Member States when it comes to the implications of international trade law.35 The conference commenced with the then-UN Secretary-General Ban Ki-moon, stating that the absence of any treaty dealing with conventional arms was ‘a disgrace’.36 The UN Member States interested in creating an att submitted detailed views concerning the proposed principles, objectives, parameters, scope, and implementation. For example, in relation to scope, Bulgaria noted that att should not regulate the licensing of either production or manufacture, because it is already ‘subject to regulation under international trade law and, as such, within the purview of bilateral or multilateral trade agreements and/or contracts’.37
This led to many Member States including Ecuador expressing the view that ‘the criteria that States must consider in deciding whether a transfer should be authorised must be objective, transparent, consistent, predictable and non-discriminatory’.38 For these States in particular, the criteria or parameters of the treaty need to be guided by the principles of non-discrimination and transparency.39 In addition, other States expressed similar views concerning the issue of implementation, i.e. that an att should be implemented in a non-discriminatory manner.40 Furthermore, Guatemala suggested
[A] confusing element – or potentially a jurisdictional gap – into the text. If a country is not controlling the physical exports or imports of items from its territory – then who is, and who is it that would be responsible for ensuring compliance with the provisions of the att? I note that in the wto context … references to “imports” or “exports” are not qualified by any reference to “under the [Contracting Parties] jurisdiction” (e.g. see gatt 1994 Articles, i, ii, iii or viii) … It is not clear to me, Mr President, why the att should need a different regime for exports and imports than is applied, for example, in the wto … States must not be able to opt out from their obligations under the att.44
This indicates that New Zealand based its question on the valid presumption that: A) the applicable law to the att/wto States’ regulations of all exported and imported goods is the wto law, and b) this law is not qualified by any references to the wto Member States’ own jurisdictions, because of wto rules,
However, two Members States (i.e. Cuba, and Kuwait on behalf of the Arab group) submitted statements expressing disappointment with the final draft. Cuba contended that the end-product was ‘an unbalanced text that favours arms-exporting States, which are granted privileges detrimental to the legitimate interests of other States, including on defence and national security issues’.48 Kuwait, on the other hand, expressed regret that the Arab States’ proposals were overlooked, as they included ‘the need to develop a mechanism for the settlement of disputes arising from a denial of permission to transport or export arms, by which importing States could have guarantees that the application of the treaty would not be politicised’.49 However, some of the above suggestions and proposals were eventually included in the final draft, and on 2 April 2013 the General Assembly adopted the att by an overwhelming majority of 154 States in favour.50 As of August 2022, there have been 111 States Parties to the att.
2.2
The att negotiations revealed three important aspects of the origin of international trade law, alongside its principles, and implications for this treaty, as discussed below. Firstly, States were guided by the spirit and principles of international trade law, most notably non-discrimination and transparency.51 The att negotiators (comprised of States’ representatives, international and regional organisations, and ngos) were aware that the prioritisation of economic interests over security, created an unbalanced arms trade threatening security and stability, both nationally and internationally.52 However, the negotiators did not fully elaborate on the broad conception of security to highlight the connection between human security and economic security, particularly as weakness or loss of the latter, results in the former becoming unattainable.53 Some of att negotiators declared that the balance of the conventional arms trade had been realised in the evolving concept of an arms trade, which commenced as a ‘responsible arms trade’, for legitimate purposes (i.e. the UN peacekeeping operations), alongside the att term of ‘legitimate trade for peaceful purposes’.54
Nonetheless, Stavrianakis subsequently claimed that ‘rather than signalling the victory of human security, the att is better understood as facilitating the mobilisation of legitimacy for contemporary liberal forms of war fighting and war preparation’.55 This was primarily due to the arms exporting States championing att and justifying ‘their arms export practices in terms of morality, responsibility and legitimacy’, including explaining these practices ‘by reference to [their] national regulatory regimes that exceed the standards set out in the att’.56 Stavrianakis argued that this resulted in ‘these justifications and regimes serv(ing) to shield [arms exporting States’] weapons transfers and use from scrutiny and accountability’.57 Therefore, the end-product consisted of
Secondly, the att refers (albeit indirectly and briefly) to international trade law because it stipulates under Article 2:2 that ‘for the purpose of this treaty’ the so called “transfer” of conventional arms activities is comprised of: ‘export, import, transit, trans-shipment and brokering’.58 This forms an explicit reference to the fact, for the transparent and effective implementation of att, these transfer activities require invoking the rules and procedures of international trade. Thirdly, a number of negotiating developing States expressed dissatisfaction with the fact that, despite att being purported to fairly regulate the conventional arms trade (in order to preserve international peace and security) its final draft is unfavourable to their trade and security needs, including the assistance required to implement this treaty.59 This clear expression of discontent also invokes the two key international trade rules of the Most-Favoured-Nation and National Treatment, founded on the principle of non-discrimination, i.e. that States must not discriminate between their trading partners, nor discriminate between imported and domestically produced goods with respect to internal taxation or other regulatory measures, respectively.60
These rules are essential for the establishment of a level playing field as a policy goal for the competing interests of traders, particularly as they are regularly invoked by all trading States.61 However, att does not specify these basic rules of international trade in order to effectively uphold the principle of non-discrimination and so protect a State Party national security. Furthermore, unlike the wto, the att has no legal standard for non-discrimination that takes into account the intent, effect, and comparability of any tradable armaments
3 The Arms Trade Treaty and the World Trade Organisation Law
The att is first and foremost a trade regulating treaty one that can be viewed as sharing similar principles and practices with the wto. Therefore, similar to a typical multilateral or bilateral trade treaty, the att contains a number of articles on trade law principles rules and procedures, including export, import, and compliance reporting.63 The att dual object is to ‘establish the highest possible common international standards for regulating, or improving, the regulation of the international trade in conventional arms [and] prevent and eradicate the illicit trade in conventional arms and prevent their diversion’. In addition, its implementation process is primarily a cooperative enforcement method of compliance review undertaken by States Parties.64 Moreover, att maintains that this serves the purpose of inter alia, i.e. ‘promoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms’.65 However, if a dispute arises between States Parties concerning the interpretation or application of att, they are permitted to select the coercive enforcement method of judicial settlement,66 while States Parties can also settle their disputes by any alternative dispute resolution method, i.e. negotiations and arbitration.67
It is notable that the att settlement procedures have not yet been invoked, thus raising questions relating to their viability, as well as the legal capacities of States Parties.68 The att key articles (particularly 6 and 7 on Prohibition and Export, and Article 11 on Diversion, and differing enforcement procedures) draw to varying degrees on international trade law. The principle of non-discrimination concerning export and import requirements, and rules on
Furthermore, the conventional arms trade not only covers the finished products, but also their components parts, which can involve a number of wto/att state parties. This is illustrated by a recent German embargo on arms exports destined for Saudi Arabia, in which Germany (an att State Party) justified its export restrictions on aircrafts’ components because of the Yemeni civil war. However, this ban impacted on the manufacturing of these aircrafts in the United Kingdom (also an att State Party), which consequently disputed its legality because it allegedly endangered the security interests of the European Union, as well as Saudi Arabia, the aircrafts’ recipient and att non-State Party.74
However, Casey-Maslen argued that, despite the clarity of the wording of att Article 2(2) in relation to the trade “transfer” activities, ‘the precise scope of the term ‘trade’ was deliberately left ambiguous in the att’.77 He also claimed that, although the export and import of conventional arms falls within the scope of wto law, it is regrettable to see ‘the absence of any reference to trade agreements, the wto or the principles of trade law’ in att.78 Nonetheless, the att and wto law share a similar purpose of establishing a fair competition between exporters and importers, as well as creating a stable and predictable multilateral trading system.79 This system has been sustained by the reciprocal and non-discriminatory interactions between consenting states since the creation of the wto’s predecessor, the gatt in 1948. Nonetheless, in response to the common unilateral nature of arms trade, the att does not contain any reciprocal obligation.
Furthermore, att and wto also share a similar process of enforcement, primarily undertaken through an obligation of conformity. Carmody, in reference to procedural fairness noted that ‘wto law is not a body of law that places direct emphasis on fairness. Instead, its most immediate concern is the ‘equality of competitive conditions’. This concern is tied to the general orientation
However, the argument for excluding the conventional arms trade from international trade law is twofold: A) the wto national security exceptions apply to all forms of trade in conventional arms at all times, and b) the att has created a self-contained regime that is separate from other international legal systems. Deciphering the first basis requires starting with the second general aspect, namely whether the att has created a self-contained regime separate from general international law, and therefore is, in essence, a lex specialis arms control regime with its own sui generis law.82 Although the att references two international trade law principles, along with international humanitarian and human rights obligations (thus making it a unique international legal system) no author has claimed that it has, to date, become a self-contained regime, because it is well-entrenched in public international law.83
In terms of trade and security rules and enforcement procedures, the att is a by-product of international law-making, and can be best regarded as a soft legal regime influenced by hard law, informal rules, and international standards for controlling the conventional arms trade.84 Furthermore, when for analytical purposes, the self-contained concept was applied to the wto system, scholars found wto had not been ‘decoupled’ from the secondary rules of general international law of state responsibility.85 By analogy (and considering its
3.1 The att and the wto National Security Exceptions
Proponents of the exemption of the conventional arms trade from wto law reason that (regardless of its primary purpose of regulating essentially trade ‘transfer’ activities) att consists of a security treaty.88 This infers that it forms a unique system, incapable of being connected to other international or regional legal systems, i.e. the wto or regional trade agreements. It remains to be seen whether a conflict of jurisdiction will be caused by att Articles 15, 16 and 26 on relationships with other international agreements, due to the States Parties seeking cooperation and assistance with implementation after breaches of international or regional trade obligations. Additionally, the general indifference to the trading of conventional arms without referencing the concepts of “conditional contraband” (i.e. trading arms for peaceful uses), and “absolute contraband” (i.e. banning armaments primarily used for war) has significantly
No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas, import or export licences or other measures, shall be instituted or maintained by any [Member State] … on the exportation or sale for export of any product destined for the territory of any other [Member State].90
Since practically all Members maintain some form of quantitative restrictions (e.g. prohibitions or restrictions relating to nuclear material, narcotic drugs, weapons, etc.), [The wto Council for Trade in Goods’ Decision on Notification Procedures for Quantitative Restrictions] seeks to provide transparency on the policy reason that justifies them. Provisions under the gatt 1994 that may allow a Member to introduce or maintain a quantitative restriction include … Article xxi (security exceptions).92
[I]t considers necessary for the protection of its essential security interests … (ii) relating to the traffic in arms, ammunition and implements
of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; [or] (iii) taken in time of war or other emergency in international relations.93
While the scope of the terms ‘military establishment’ may be wide, it certainly does not encompass civilian trade and it is questionable whether it extends to exports for the purpose of law enforcement by police forces. Moreover, the att focuses on the adverse consequences in a recipient state (not the security interest in the exporting state); indeed, an exporting state might define its ‘essential security interest’ in a way that would benefit from a transfer, as Article 7(1) of the treaty seems to imply, notwithstanding the negative consequences for civilian populations in the recipient state. At the same time, gatt Article xxi gives broad discretion to a wto member to define what ‘it considers’ necessary to protect ‘its essential security interests’, and this could include export restrictions based on concerns for negative consequences in the recipient state
which, indirectly, may affect also the security interests of the exporting state.96
Casey-Maslen concluded by highlighting that even the exception contained within the preamble of the wto Technical Barriers to Trade Agreement (tbt) can be considered inapplicable to the international trade in conventional arms.97 The tbt preamble stipulates that it does not prevent a wto Member State from taking measures necessary for inter alia ‘the protection of human … life or health or for the prevention of deceptive practices’. However, Casey-Maslen maintained that this exception ‘governs the technical quality of the arms or ammunition being exported, as opposed to the decision whether or not to export arms to certain recipients’.98
3.2 The State Subsidisation of the Arms Industry
The preceding points can be demonstrated by the 1997 Canada-Aircraft dispute, which illustrated the legal risk of having trade discrimination in disguise as a result of the disconnection between conventional arms trade and wto law. In this dispute, Brazil alleged that the Canadian government’s programme of subsidies to aerospace and defence corporations for the production of civilian aircrafts was “prohibited export subsidies” in breach of Article 3 of the Agreement on Subsidies and Countervailing Measures (scm).99 One of the corporations benefiting from this programme was Bombardier, which at the time provided military aviation services.100 However, the Panel ruled against Canada, finding that certain measures were inconsistent with Article 3 of the scm.101
Following this ruling, Canada redesigned its programme to make it ‘wto-friendly’, in particular by announcing a $30 million subsidy programme for the
One concerning outcome has resulted from States’ arms procurement and subsidisation of the conventional arms industry in the name of national security: there has been uncontrollable proliferation of conventional arms which causes violence and criminality both domestically and internationally.107 For
4 The Arms Trade Treaty Enforcement System
Due to its role in regulating the trade and security obligations of States Parties, the att requires a higher level of conformity than the wto. However, as illustrated by the following factors, it currently falls short of being a comprehensive multilateral trade and security treaty. Firstly, rather than setting down strictly binding provisions and timeframes, the att contains inadequate wording on enforcement and transparency; for example, Article 14 on enforcement reads ‘[E]ach State Party shall take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty’. In addition, Article 19 on the dispute settlement procedures is too brief to assure compliance,110 including the need to foresee the common situation of States failing to agree on how to resolve disputes within a specific timeframe.111 This infers that att cannot be regarded as strictly binding, when some of its core obligations (i.e. on Implementation, Diversion and Reporting) contain recommendatory words i.e. States Parties being “encouraged” to act.112
The weakness of att thus impacts on one of the key principles concerning the observance of treaties, i.e. the pacta sunt servanda (as set out under
The only att guiding rules capable of being regarded as legitimate exceptions for States Parties to deviate from their trade obligations are: firstly, the preambular point that State Parties recognise ‘the legitimate political, security, economic and commercial interests of States in the international trade in conventional arms’.116 Secondly, this point being reiterated as a preambular principle in the treaty with an additional sentence specifying that respect for the legitimate interests of States includes their rights to ‘produce, export, import and transfer conventional arms’.117 Nonetheless, these preambular points and principles are inadequate exceptions potentially susceptible (particularly when it comes to arms exporting States) to misinterpretation and breaches.118
Thirdly, the att lacks any appropriate mechanism to scrutinise a State Party’s arms export control system, or to penalise such a State for breaching its international legal obligations. att Article 7(2) gives arms exporting and importing State Parties the right to adopt their own “risk mitigating programmes”. However, it should be acknowledged that this right has been abused by arms exporting States, and many importing States lack the capacity to implement this programme.119 For instance, a number of arms importing States have failed
Fourthly, the att suffers from a lack of available legal remedies for non-att State Parties (Third States) and non-State actors impacted by this treaty implementation, or the lack thereof.121 This is evident in att Articles 6 and 7 concerning Prohibitions and Export, as well as Articles 5 (Implementation), 14 (Enforcement), and 19 (Dispute Settlement) which provide rules for att States Parties only. Thus, if a third State arms exporter or importer, or ngo representing the legitimate rights and interests of traders or civilians, have been affected by an att State Party’s misinterpretation or mis-implementation, they can only seek enforcement, protection, or recovery of rights through the offending att State Party. This represents a significant obstacle for both att and all its stakeholders.122
4.1 The att Function of Cooperative Enforcement
In terms of legal practice, the att held six Conferences of States Parties (csps) between 2015 and 2020, and (according to the att) csp functions include considering ‘amendments to this Treaty in accordance with Article 20 [six years after the entry into force of this Treaty, i.e. 2021] [and] issues arising from the interpretation of this Treaty’.123 The 2016 csp2 proved the most significant in terms of proposals for implementation and transparency with the States Parties establishing three standing Working Groups on: firstly, Treaty Universalisation (wgtu), secondly, Transparency and Reporting (wgtr), and thirdly, Effective Treaty Implementation (wgeti).124 These groups assist States Parties in implementing the att according to their respective mandates, while during csp4 “the wgeti Chair established three Sub-working groups to focus
The csp2 was also important for establishing the att Voluntary Trust Fund (vtf) to ‘support national implementation of the Treaty and encourage all States Parties to contribute resources to the Fund’.126 The beneficiaries of vtf projects have been att States Parties, Signatory States and other States demonstrating a political commitment to acceding to the att.127 att treaty universalisation, along with the active and consistent participation of ngos and civil society in the att six csps, can be considered to have raised States’ awareness of the security implications of an unregulated arms trade industry. Furthermore, this enables a stronger argument to be made in favour of customary international law, as (according to Article 38 of the vclt) international custom ensures a rule in a treaty becomes binding on a third State;128 i.e. an att peremptory norm against genocide is binding on third States, due to it constituting a customary rule of international law.129 This permits att to support third parties in directly protecting their rights under the jurisdiction of an offending State Party, to hold it accountable to its treaty obligations.130
The weakness of the Arms Trade Treaty … is a further commentary on how States around the world, in particular those that are the biggest
arms producers, so effectively manipulate the international regulatory environment in the interests of arms manufacturers rather than global citizens. Perhaps it is the beginning of a bigger debate, and the treaty can be radically revised over time. But as it stands, it will do little to limit the worst parts of the arms trade.133
However, although wto suffers from the identical issues concerning third parties, its binding rules provide effective remedies for Member States representing the legitimate interests of their traders, while the wto dsb has offered security and predictability by monitoring and securing compliance.134 Moreover, the wto has made some progress in the effective management of trade risks; for example, by assisting Member States regulating factors associated with non-communicable diseases.135 The wto experience in general can be considered highly instructive for both att law and practice. In brief, international arms control and the wto law are two academic fields divided by a common subject: The study of international trade law. The wto enforcement mechanisms are explicated below to demonstrate the similarities between att and wto, as well as the mutually beneficial cross-fertilisation between the two systems for the upcoming att reform.
4.2 The att and the wto Enforcement Mechanisms
This subsection compares att and wto enforcement mechanisms, in order to highlight the strengths and weaknesses of both multilateral trading systems. The att and wto share the same original purpose of regulating the international trade of merchandised goods, but differ markedly in terms of compliance and enforcement. The att primary enforcement mechanisms are stipulated briefly in Article 14 on enforcement and Article 19 on dispute settlement. However, the att is mainly enforced by cooperative enforcement mechanisms, by means of reporting, and voluntary consultations between States Parties, being influenced by the incentive to comply as a result of the potential reputational costs to the State.136 Erickson; for instance, argued that, even during
In addition, Erickson pointed out that ‘concern for international reputation may pressure States to commit to new policies, but without international accountability mechanisms, those policies’ ability to inspire compliance may be limited’.138 These policies include risk mitigating programmes; for example, a system for licencing arms exports and end-user agreements, but without international legal accountability, they lack efficacy.139 Furthermore, sipri reported in 2021 that the att’s enforcement problems have persisted namely ‘shortfalls in compliance with mandatory reporting and a decline in the number of publicly available reports’.140 Nevertheless, unlike att, the wto contains both a designated compliance body, (i.e. dsb) and an implementation review mechanism, the Trade Policy Review Body (tprb).141 The sole objective of these wto mechanisms is to deter non-compliance generally arising from either ‘norm ambiguities’ and/or ‘capacity limitations’.142
The wto dsb consists of representatives from all Member States’ governments and has authority to inter alia ‘adopt panel, ab and arbitration reports, [and] maintain surveillance over the implementation of recommendations and rulings contained in such reports’.143 The wto dispute settlement process is formed of three main stages: ‘(i) consultation between the parties; (ii) adjudication by panel, and if applicable, by the ab; and (iii) the implementation of ruling, which include the possibility of countermeasures in the event of failure
The legal motive for the initiation of consultation is that once a State has anticipated, that ‘a decision or a proposed course of action’ may harm its rights and obligations. Thus consultation can prove ‘a way of heading off a dispute’, by engaging in dialogue with the offending State, so as to find a mutual solution.146 Furthermore, the wto also acknowledged that ‘a majority of disputes so far … have not proceeded beyond consultations, either because a satisfactory settlement was found, or because the complainant decided for other reasons not to pursue the matter further’.147 However, it is incorrect to assume that the existence of the wto dsb, and in particular the ab, makes it the sole arbiter of legality, rather than the wto as an institution, since it is primarily comprised of political organs for decision-making.148 This can be viewed as a caricature of legality, including its reductionist views of how and where to improve compliance, which miss the crucial point that dispute settlement forms only one element of interactional international law.149
There are a number of bodies and organs that jointly exceed the dsb in importance (i.e. the tprb, various committees, working parties on accession, and working groups) all of whom play a pivotal role in maintaining compliance with wto obligations. According to paragraph A(i) of the wto Trade Policy Review Mechanism (tprm) (i.e. the tprb enforcement mechanism), the objectives of the review includes improving ‘adherence by all members to the wto rules, disciplines and commitments’.150 Moreover, the tprm likely impact is ‘to ‘shame’ Members into compliance and to support domestic opposition to trade policy and practices inconsistent with wto law’.151 Thus, the tprm is best regarded as ‘an implementation review mechanism’ performing a significant enforcement role complementing the work of the wto compliance
5 Findings and Recommendations for Reforming the Arms Trade Treaty
The textual defects and inadequate enforcement procedures of att ensures that it remains incomparable to the wto, and hence is in need of reform, as discussed below. Firstly, the att needs to establish a clear connection between the trade and security impact of an unregulated conventional arms industry, as well as any diversion of arms to the illicit markets. As alluded to earlier, the subsidisation of the arms industry in the name of national security is one of the main causes of the diversion of arms to poorly regulated developing countries. The aforementioned “blowback effect” to an arms-exporting State clearly highlights the risk of disconnecting conventional arms trade from security, and the weakness of the argument focusing on sovereignty. The att treaty and system should thus assist States in realising the risks associated with an unregulated arms industry, as well as utilising the best international legal practices for the effective management of these risks.
Secondly, the main legal and political incentives for States to seek international adjudication is to ensure compliance with international legal obligations, as well as manage domestic politics and defend their interests.153 However, the att voluntary dispute settlement system lacks these crucial incentives, resulting in States Parties trading arms with neither transparency nor accountability, thus misinterpreting and mis-implementing the att and jeopardising the security interests of non-State parties. Thirdly, despite the positive impact of the State’s international reputation, the att cannot rely solely on cooperative enforcement through reporting and consultation, without the coercive enforcement mechanism of a standing dsb with a strict timeframe, as well as the surveillance and monitoring of implementation. Fourthly, the att should adopt an interactional legal process, in particular by establishing compulsory diplomatic and quasi-judicial enforcement mechanisms, alongside councils
The att remains pertinent during times of relative peace or conflict; inferring that its States Parties need to maintain their legal interaction in order to ensure optimal compliance with att obligations. In addition, the att and wto’s focus on the obligation of conformity can be read as the construction of ‘an interactional theory of compliance’, as a result of att/wto States engagements in the legal process of determining the obligation to comply through cooperative enforcement, so demonstrating that compliance is a ‘dialectal process in a continuum’.155 Thus, the wto regulatory system should be adopted for managing international trade in conventional arms, due to the following three reason: first, the att, albeit its ambiguity, does not explicitly exclude wto law, hence the direct and indirect references to the wto law and its core international trade principles by att negotiating States. Second, the att “transfer” trade activities, principles of non-discrimination and transparency, and enforcement through the obligation of conformity, ensures wto constitutes the most pertinent archetypal system for the att reform. Finally, the att and the wto shared issues of subsidisation and dumping of goods, require rules and mechanisms such as those of the wto’s, for effectively regulating the conventional arms trade.
6 Conclusion
This chapter has: First examined the issues arising from the att’s lack of international trade law and practice, especially the WTO rules and procedures, and second, highlighted that the trade law deficit in att has led to major defects negatively impacting the enforcement of international legal obligations of States Parties. The key finding is that the att’s legal history, core obligations and mechanisms, along with its relationship to other international legal systems, demonstrate that it is firmly embedded in both the legal theory and practice of international trade law.
Nonetheless, the significance of trade law has gradually retreated as att (re)negotiations have progressed, resulting in arms exporting States subsequently being able to evade international accountability for breaching the
This chapter concludes that att should learn from the wto dialectical process of enforcement through different legal interactions settings i.e. councils, dsb, and tprb. In addition, the att should create a cooperative enforcement mechanism for strategically managing and rectifying risks arising from treaty breaches. This mechanism should possess the authority to cooperate with the arms control departments of States Parties, in order to ensure breaches do not reoccur.
Acknowledgements
I would like to thank the editors, especially Trisha Rajput, for their kind invitation to contribute this chapter to this seminal volume, and present it at the book conference at Gothenburg University. I’m also grateful to Trisha, Gabriela Argüello, Joel Malmgren, and my colleague Ian James Parker for their careful reading and insightful comments on earlier drafts of this chapter.
HC Engelbrecht and FC Hanighen, Merchants of Death: A Study of the International Armament Industry (Dodd, Mead and Company Inc. 1934) 261.
Art 26 citing Article 47 of the United Nations, Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 unts xvi.
See the Wassenaar Arrangement between 42 States <
Art 2:2 of the Arms Trade Treaty (att) (adopted 2 April 2013, entered into force 24 December 2014) 3013 unts 3.; Art 2:1(a) the Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) unts 78, 277.
See Martin Daunton and others, The Oxford Handbook on the World Trade Organization (oup 2012); Jose Alvarez, ‘The WTO as Linkage Machine’ (2002) American Journal of International Law 146.
Art 2:1 of the att (n 4).
Arts 9 and 11:4 of the att (n 4).
ibid, Principles and Article 19 of the att (n 4).
ibid, Preamble and Arts 5:1 and 7:1 of the att (n 4).
Laurence Lustgarten (ed), Law and the Arms Trade: Weapons, Blood and Rules (Hart Publishing 2020) i. See C Weeramantry, Universalising International Law (Martinus Nijhoff Publishers 2003) 205; Barry Kellman, ‘Controlling the Arms Trade: One Important Stride for Humankind’ (2014) Fordham International Law Journal 687.
Art 7:3 of the att (n 4).
See gatt Article xi:1 in World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (20th printing, cup 2013) 437. [The wto Legal Texts]. For a further discussion about national security interests within the ambit of gatt Article xx, see the chapter by Trisha Rajput in this volume.
Art 6:2 of the att (n 4).
UN, Toward an Arms Trade Treaty: Establishing Common International Standards for the Import, Export, and Transfer of Conventional Arms, General Assembly, A/63/334 (26 August 2008) [Report of the Group of Governmental Experts].
Byron Doenges, ‘The International Arms Trade’ (1976) Challenge 14–20.
See Zeray Yihdego, The Arms Trade and International Law (Hart publishing, 2007) 96–97; Miriam Pemberton and Steven Staples, ‘Security Exception and Arms Trade’ (Institute for Policy Studies, 1 April 2000) <
Art 26:1 of the att (n 4).
Art 20:1 of the att (n 4).
For example, few sets of guiding principles apply to conventional arms trade, such as 1996 UN Disarmament Commission Guidelines for International Arms Transfers, and 1998 European Union (EU) Code of Conduct on Arms Exports. See UN, Report of the Disarmament Commission, A/51/43, (22 May 1996); European Union, EU Code of Conduct on Arms Exports, EU Council 8675/2/98, Rev. 2, 5 June 1998; UN, The Arms Trade Treaty, General Assembly, A/Res/67/234 B (11 June 2013).
UN, Toward an Arms Trade Treaty: Resolution Adopted by the General Assembly, a/res/61/89 (6 December 2006).
ibid.
ibid.
ibid.
UN, Toward an Arms Trade Treaty: Report of the Group of Governmental Experts, para. 14 (n 14).
ibid. para. 23. See Laurence Lustgarten, ‘The Arms Trade: A Critical Introduction’ in Lustgarten (n 10) 6–23.
UN, Toward an Arms Trade Treaty: Report of the Group of Governmental Experts, para. 24 (n 14).
ibid. para. 8.
ibid. para. 17, 24.
ibid. Summary.
ibid.
UN, Toward an Arms Trade Treaty: Establishing Common International Standards for the Import Export and Transfer of Conventional Arms, a/res/63/240 (8 January 2009).
UN, Draft Report of the Open-ended Working Group Toward and Arms Trade Treaty, General Assembly, a/ac.277/2009/ L.4, para. 20 (16 July 2009).
Documents at the UN Conference on the Arms Trade Treaty (UN) <
ibid, unlike Russia, the US made only two statements during the 2012 and 2013 negotiations. See Gro Nystuen and Kjolv Egeland, ‘The Potential of the Arms Trade Treaty to Reduce Violation of International Humanitarian Law and Human Rights Law’ in Cecilia Bailliet and Kjetil Larsen (ed), Promoting Peace Through International Law (oup 2015) 215.
UN, Compilation of Views on the Elements of an Arms Trade Treaty, General Assembly, a/conf.217/2 (10 May 2012) [The Compilation of Views].
UN, Secretary-General, ‘In Remarks to Conference on Arms Trade Treaty, Calls Absence of Global instrument Dealing with Conventional Weapons ‘a Disgrace’’ (UN, 3 July 2012) <
UN, the Compilation of Views, (n 35) 13.
ibid 31, see the views of Algeria, Cuba, India, Indonesia, Liechtenstein, and Switzerland.
ibid.
ibid, see the views of Indonesia, Singapore, and Vietnam.
UN, Compilation of Views on the Elements of an Arms Trade Treaty Addendum, General Assembly, a/conf.217/2/Add.1 (27 June 2012).
See the views of Liechtenstein and Switzerland, UN, the Compilation of Views (n 35).
UN, The Arms Trade Treaty, General Assembly, a/res/67/234 (4 January 2013).
UN, Statement by New Zealand, Arms Trade Treaty Conference (18–23 March 2013) <
See gatt art x, The WTO Legal Texts (n 12) 435–436.
UN, Statement of Assistant US Secretary of State, Thomas Countryman, Arms Trade Treaty Conference (23 March 2013). See UN, Opening Statement by UK Ambassador Joanne Adamson, Arms Trade Treaty Conference, (18 March 2013) <
UN, Statement Delivered by Ghana on Behalf of 103 States, Arms Trade Treaty Conference (25 March 2013).
UN, Statement by the Representative of Cuba, General Assembly, a/conf.217/2013/3 (1 April 2013).
UN, Statement by the Representative of Kuwait, General Assembly, a/conf.217/2013/4 (2 April 2013).
UN, The Arms Trade Treaty, General Assembly, A/Res/67/234 B (11 June 2013).
See the Compilation of Views (n 35).
See Statements on the Arms Trade Treaty (n 33).
See the statement by the representative of the Control Arms Coalition at the Arms Trade Treaty Preparatory Committee (3 March 2011) see Statements on the Arms Trade Treaty (n 33).
UN, Declaration by Permanent Representative of France to the Conference on the Arms Trade Treaty on Behalf of China, Russia, the UK and the USA, (18 March 2013). See the 2006 Resolution (n 20); UN, Toward an Arms Trade Treaty: Report of the Group of Governmental Experts (n 14); the att (n 4).
Anna Stavrianakis, ‘Legitimising Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) Third World Quarterly 840.
ibid.
ibid. See Efrat who found that common law arms-exporting States prefer weaker international regulation of arms; Asif Efrat, Governing Guns, Preventing Plunder: International Cooperation Against Illicit Trade (oup 2012) 77. See Bromund who cited Harold Koh, then US State Department Legal Advisor, who stated that international law treaty-making process that created the att poses a threat to the US constitution, see Theodore Bromund, ‘The UN Arms Trade Treaty and Gun Grab’ (The Heritage Foundation, 5 March 2013) <
Art 2:2 of the att (n 4).
See Cuba and Kuwait Statements (n 48–49). See March 2013 Statements by the representatives of Bangladesh, Cambodia, and Ethiopia, see Statements on the Arms Trade Treaty (n 33).
Peter Van den Bossche and Werner Zdouc, The Law and Policy of the World Trade Organisation: Text, Cases and Materials (4th edn., cup 2018) 339, 412.
See gatt art I on the Most-Favoured-Nation Treatment, and Article iii on the National Treatment’ clauses, which have been frequently invoked by the wto Member States, see the wto-Disputes by Agreement- gatt 1994 <
Simon Lester and others, World Trade Law: Texts, Materials and Commentary (3rd edn, Hart Publishing 2018) 259–263.
See arts 7, 8 and 13 of the att (n 4).
See arts 1, 5 and 13–16 of the att (n 4).
Arts 1 of the att, see on transparency Article 5:5 of the att (n 4).
Art 19 of the att (n 4).
ibid.
The att Secretariat confirmed in an email received by the author in October 2020 that Article 19 has not been invoked by States Parties.
See the words: Contraband, Goods, and Unascertained Goods in Elizabeth Martin (ed), A Dictionary of Law (5th edn., oup 2003) 113, 221, 514.
Oana Tocoian, ‘The Home Market Effect in International Arms Trade’ (2015) Economic Inquiry 1751. See Asif Efrat, ‘Toward Internationally Regulated Goods: Controlling the Trade in Small Arms and Light Weapons’ (2010) International Organization 97.
Paul Holden and others, Indefensible: Seven Myths that Sustain the Global Arms Trade (Zen Books 2016) 58–64.
See Peter Evans, ‘The Financing Factor in Arms Sales: The Role of Official Export Credits and Guarantees’ in SIPRI, SIPRI Yearbook 2003: Armaments, Disarmament, and International Security (oup 2003) 540. Stohl and Grillot’s list of “Legal Transactions to the Illicit Market”, and example on the challenge faced by the US in keeping track of its conventional arms and munition in Iraq post-2003 invasion, see Rachel Stohl and Suzette Grillot, The International Arms Trade (Polity Press 2009) 90, 100–102 citing United States Government Accountability Office, (Operation Iraqi Freedom, 22 March 2007) <
Holden (n 71) 11–38; Richard Bitzinger, ‘The Globalization of the Arms Industry: The Next Proliferation Challenge’ (1994) International Security 170.
sipri Press Release, ‘World Military Spending Rises to Almost $2 Trillion in 2020’ (SIPRI, 29 April 2021) <
Deutsche Welle, ‘Germany Rebuffs UK Call to Lift Ban on Arms Export to Saudi Arabia’ (Deutsche Welle, 2 February 2019) <
Preamble, the att (n 4).
The vclt (n 4). See art 26:1 of the att (n 2).
Stuart Casey-Maslen, ‘The Title of the Treaty’ in Andrew Clapham and others, The Arms Trade Treaty: A Commentary (oup 2016) 15.
ibid. 16 citing Joost Pauwelyn, ‘UN Arms Trade Treaty’ (International Economic Law and Policy Blog, 1 November 2012) <
See Ralph Ossa, “Trade Wars and Trade Talks with Data” (2014) The American Economic Review 4104.
Chios Carmody, ‘Fairness as Appropriateness: Some Reflections on Procedural Fairness in WTO Law’ in Arman Sarvarian and others, Procedural Fairness in International Courts and Tribunals (British Institute of International and Comparative Law 2015) 278 citing (The Appellate Body Report, Japan-Taxes on Alcoholic Beverages, page 16, wt/ds8/ab/r, adopted 4 October 1996).
Julien Chaisse, ‘Deconstructing the WTO Conformity Obligation: A Theory of Compliance as a Process’ (2015) Fordham International Law Journal 5.
Yihdego (n 16) 299. See Anja Lindroos, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis’ (2005) Nordic Journal of International Law 27.
See Echart Klein, ‘Self-Contained Regime’ 2006 Max Plank Encyclopedia of International Law <
See Holden (n 71) 80–81; On informal rules see Joost Pauwelyn, ‘Rules-Based Trade 2.0? The Rise of Informal Rules and International Standards and How They May Outcompete WTO Treaties’ (2014) Journal of International Economic Law 739.
Bruno Simma and Dirk Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’ (2006) European Journal of International Law 483. See Ulf Linderfalk, ‘State Responsibility and the Primary-Secondary Rules Terminology- The Role of Language for an Understanding of the International Legal System’ (2009) Nordic Journal of International Law 53.
Report of the ilc on the Work of its Twenty-Fifth Session, ilc Yearbook 1973, vol. 2, p. 161, at p. 169.
See art iii:e of the Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) unts 78, 277. Clapham also stated that State responsibility under the att regime entails that ‘the offending state may be responsible for a breach of the treaty even before any act of genocide takes place; its liability under the att is for breach of the treaty obligation in authorising the transfer rather than for the consequences of any eventual genocide’. See Clapham and others, (n 77) 207. On the att and international criminal law see Lustgarten (n 10) 387–388 and Nina Jorgensen, ‘State Responsibility for Aiding or Assisting International Crimes in the Context of the Arms Trade Treaty’ (2014) American Journal of International Law 722.
See Yihdego; and Pemberton and Staples (n 16).
Martin (n 69)113–114. See John Grant and J Craig Barker, Parry & Grant Encyclopaedic Dictionary of International Law (3rd edn, oup 2009) 125.
gatt art xi:1, The WTO Legal Texts (n 12).
wto Analytical Index: gatt 1994-Article xi (Practice) <
ibid.
gatt art xi:1, The WTO Legal Texts (n 12).
Bossche and Zdouc (n 60) 628.
Casey-Maslen, ‘The Title of the Treaty’ (n 77) 15.
ibid. See the Analytical Index of the gatt-Article xxi Security Exceptions, Page 602 (wto) <
Casey-Maslen, ‘The Title of the Treaty’ (n 77) 15.
ibid. See Lowenfeld who stated, ‘Since Article xxi is a self-judging measure and no procedure has ever been created to subject a contracting party’s assertion of national security to international scrutiny, the provision has the potential to become a significant means for evading gatt obligations’. Andreas Lowenfeld, International Economic Law (2nd edn, oup 2008) 37.
ds70: Canada- Measures Affecting the Export of Civilian Aircraft.
Bombardier Inc, Press Release, ‘Bombardier Announces Sale of its Military Aviation Services Unit’ 10 June 2003 <
The Panel Report, Canada-Measures Affecting the Export of Civilian Aircrafts, wt/ds70/r, (adopted 14 April 1999) para. 10.1.
Canadian Press, ‘$30 million for Defence Contractors’ Canadian Press, Ottawa (18 October 1999).
See ds71: Canada-Measures Affecting the Export of Civilian Aircraft; ds222: Canada-Export Credits and Loan Guarantees for Regional Aircraft; and ds522: Canada Measures Concerning Trade in Commercial Aircraft.
Steven Staples, ‘The Relationship Between Globalization and Militarism’ (2000) Social Justice 18.
John Feffer, ‘Globalization and Militarization’ (Institute for Policy Studies, 4 October 2005) <
For example, between 1996 and 2020 Lockheed Martin Corporation received $1.8 billion in subsidies from the US government. The corporation has benefited from the US patronage during times of economic crises too, for instance, in the first half of 2020 it received $1.1 billion because of the COVID-19 pandemic. Other corporations which benefited from the US financial support during this period include, Raytheon Technologies Corp. ($410 million), L3 Harris Technologies Inc. ($74 million) and Northrop Grumman Corp. ($70 million). See sipri (n 73); Good Jobs First, ‘Subsidy Tracker Partner Company Summary: Lockheed Martin’ (Good Jobs First, 2020) <
See Allan Lichtman, Repeal the Second Amendment: The Case for a Safer America (St Martin’s Publishing Group 2020); Engelbrecht and Hanighen, Merchants of Death (n 1).
See Stohl and Grillot (n 71); Holden (n 71).
Stohl and Grillot (71) 90, 100–102; Aisha Ahmad, Jihad & Co.: Black Markets and Islamist Power (oup 2017) 32–37, 148–150; Holden (n 71) 58–64.
See arts 5(4) and 14 of the att (n 4).
Article 19 maintains “1. States Parties shall consult and, by mutual consent, cooperate to pursue settlement of any dispute … through negotiations … 2. States Parties may pursue, by mutual consent, arbitration to settle any dispute between them …” see the att (n 4).
See arts 5(3–4); 7(7); 11(5–6); 12 (2–3); 13 (2); 15(2–6); 16(3) of the att (n 4).
Art 26 of the vclt (n 4).
Art 13:3 of the att permits States Parties without explanation to exclude from their annual reports any ‘commercially sensitive or national security information’, the att (n 4). See Yashuito Fukui, ‘The Arms Trade Treaty: Pursuit for the Effective Control of Arms Transfer’ (2015) Journal of Conflict and Security Law 301; Laurence Lustgarten, ‘The Arms Trade: A Critical Introduction’ in Lustgarten (n 10) 20–23; Holden (n 71) 135–152.
The wto: Disputes by Agreement: gatt 1994: <
Preamble, the att (n 4).
Principles, the att (n 4).
See Laurence Lustgarten, ‘The Arms Trade Treaty: Achievements, Failings, Future’ (2015) International and Comparative Law Quarterly 569; Stavrianakis (n 55).
Art 7(2) the att (n 4). Lustgarten (n 10) 94.
Tobias Vestner, ‘Prohibitions and Export Assessment: Tracking Implementation of the Arms Trade Treaty’ (2019) The Geneva Centre for Security Policy Research Paper <
Some of the major exporters and importers of conventional arms are third States such as the US and Egypt see Stohl and Grillot (n 71) 138; Elli Kytomaki, ‘The Defence Industry, Investors and the Arms Trade Treaty’ (Chathamhouse, 2014) <
Jennifer Erickson, Dangerous Trade: Arms Exports, Human Rights, and International Reputation (Columbia University Press 2015) 152.
Art 17:4 of the att (n 4).
Working Groups, (att) <
ibid. The csp5 ended the Sub-working group on Article 5 and established a Sub-working group on Article 9.
Voluntary Trust Fund, (att) <
ibid.
Art 38 of The vclt (n 4).
See James Crawford, State Responsibility: The General Part (cup 2013) 106 citing art 41 of the UN Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001.
ibid.
Erickson (n 122) 152.
Holden (n 71) 80–81.
Holden (n 71) 81.
See John Jackson and Carlos Vazquez ‘Some Reflections on Compliance with WTO Dispute Settlement Decisions’ (2002) Law and Policy in International Business 555.
Tania Voon and Andrew D Mitchell, ‘International Trade Law’ in Tania Voon, Andrew Mitchell, and Jonathan Liberman (eds.), Regulating Tobacco, Alcohol, and Unhealthy Food (Routledge 2016) 92–94. See Justin Paul and Rajiv Aserkar, Export Import Management (oup 2013).
See the att arts 13 on reporting and Articles 17:7, 15:3 and 19:1 on consultations. See Erickson (n 122); Rachel Brewster, ‘Unpacking the State’s Reputation’ (2009) Harvard International Law Journal 231; Dietrich Earnhart and Robert Glicksman, ‘Coercive vs. Cooperative Enforcement: Effect of Enforcement Approach on Environmental Management’ (2015) International Review of Law and Economics 135.
Erickson (n 122) 5.
ibid 7.
See Jutta Brunnée, ‘International Legal Accountability Through the Lens of the Law of State Responsibility’ (2005) Netherlands Yearbook of International Law 3.
sipri, SIPRI Yearbook 2021: Armaments, Disarmament and International Security (sipri, 2021, page 24) <
Jutta Brunnée, ‘Compliance Control’ in Geir Ulfstein and others (eds), Making Treaties Work: Human Rights, Environment and Arms Control (cup 2007) 382.
ibid 373.
The wto dsb, (wto) <
The wto- The Process – Stages in a Typical wto Dispute Settlement Case (wto) <
ibid.
JG Merrills, International Dispute Settlement (5th edn, cup 2011) 2.
ibid.
Robert Wolfe, ‘See You in Geneva? Legal (Mis)Representations of the Trading System’ (2005) European Journal of International Relations 339.
Jutta Brunnée and Stephen J Toope, Legitimacy and Legality in International Law: An Interactional Account (cup 2010) 108–114.
The wto tprm, (wto, 1 January 2019) <
Bossche and Zdouc (n 60) 103. See Mathias Kende, The Trade Policy Review Mechanism: A Critical Analysis (oup 2018); Brewster (n 136).
See Brunnée, ‘Compliance Control’ (n 141) 382.
See Christina Davis, Why Adjudicate? Enforcing Trade Rules in the WTO (Princeton up 2012).
See Brunnée and Toope (n 149).
Chaisse (n 81); Jackson and Vazquez (n 134).
Table of Authorities
International Treaties
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 unts xvi.
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) unts 78, 277.
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) U.N. Doc.A/Conf.39/27, 1155, unts 331, 8 ilm 679.
Arms Trade Treaty (att) (adopted 2 April 2013, entered into force 24 December 2014) 3013 unts 3.
UN, Compilation of Views on the Elements of an Arms Trade Treaty Addendum, General Assembly, a/conf.217/2/Add.1 (27 June 2012).
UN, Compilation of Views on the Elements of an Arms Trade Treaty, General Assembly, a/conf.217/2 (10 May 2012).
UN, Draft Report of the Open-ended Working Group Toward and Arms Trade Treaty, General Assembly, a/ac.277/2009/ L.4, para. 20 (16 July 2009).
UN, Report of the Disarmament Commission, A/51/43, (22 May 1996).
UN, Statement by the Representative of Cuba, General Assembly, a/conf.217/2013/3 (1 April 2013).
UN, Statement by the Representative of Kuwait, General Assembly, a/conf.217/2013/4 (2 April 2013).
UN, Statement Delivered by Ghana on Behalf of 103 States, Arms Trade Treaty Conference (25 March 2013).
UN, The Arms Trade Treaty, General Assembly, A/Res/67/234 B (11 June 2013).
UN, The Arms Trade Treaty, General Assembly, A/Res/67/234 B (11 June 2013).
UN, Toward an Arms Trade Treaty: Establishing Common International Standards for the Import, Export, and Transfer of Conventional Arms, General Assembly, A/63/334 (26 August 2008).
UN, Toward an Arms Trade Treaty: Establishing Common International Standards for the Import Export and Transfer of Conventional Arms, a/res/63/240 (8 January 2009).
UN, Toward an Arms Trade Treaty: Resolution Adopted by the General Assembly, a/res/61/89 (6 December 2006).
EU Document
European Union, EU Code of Conduct on Arms Exports, EU Council 8675/2/98, Rev. 2, 5 June 1998.
wto Disputes and Reports
ds222: Canada-Export Credits and Loan Guarantees for Regional Aircraft.
ds522: Canada Measures Concerning Trade in Commercial Aircraft.
ds71: Canada-Measures Affecting the Export of Civilian Aircraft.
Report of the Trade Policy Review Body for 2015, (23 October 2015), wt/tpr/361.
The Appellate Body Report, Japan- Taxes on Alcoholic Beverages, page 16, wt/ds8/ab/r, (adopted 4 October 1996).
The Panel Report, Canada-Measures Affecting the Export of Civilian Aircrafts, wt/ds70/r, (adopted 14 April 1999) para. 10.1.
Books and Book Chapters
Ahmad A, Jihad & Co.: Black Markets and Islamist Power (oup 2017).
Bailliet C and Larsen K (ed), Promoting Peace Through International Law (oup 2015).
Brunnée J and Toope S, Legitimacy and Legality in International Law: An Interactional Account (cup, 2010).
Clapham A and others, The Arms Trade Treaty: A Commentary (oup 2016).
Crawford J, State Responsibility: The General Part (cup 2013).
Daunton M and others, The Oxford Handbook on the World Trade Organization (oup 2012).
Davis C, Why Adjudicate? Enforcing Trade Rules in thewto (Princeton up 2012).
Efrat A, Governing Guns, Preventing Plunder: International Cooperation Against Illicit Trade (oup 2012).
Engelbrecht HC and Hanighen FC, Merchants of Death: A Study of the International Armament Industry (Dodd, Mead and Company Inc. 1934).
Erickson J, Dangerous Trade: Arms Exports, Human Rights, and International Reputation (Columbia UP 2015).
Grant J and Barker JC, Parry & Grant Encyclopaedic Dictionary of International Law (3rd edn, oup 2009).
Goldstein J and others ,Legalization and World Politics (The mit Press 2001).
Holden P and others, Indefensible: Seven Myths that Sustain the Global Arms Trade (Zen Books 2016).
Kende M, The Trade Policy Review Mechanism: A Critical Analysis (oup 2018).
Lester S and others, World Trade Law: Texts, Materials and Commentary (3rd edn, Hart Publishing 2018).
Lichtman A, Repeal the Second Amendment: The Case for a Safer America (St Martin’s Publishing Group 2020).
Lowenfeld A, International Economic Law (2nd edn, oup 2008).
Lustgarten L (ed), Law and the Arms Trade: Weapons, Blood and Rules (Hart Publishing 2020).
Martin E (ed), A Dictionary of Law (5th edn., oup 2003).
Merrills JG, International Dispute Settlement (5th edn, cup 2011).
Mitchell A and others (eds), Good Faith and International Economic Law (oup 2015).
Paul J and Aserkar R, Export Import Management (oup 2013).
Sarvarian A and others, Procedural Fairness in International Courts and Tribunals (British Institute of International and Comparative Law 2015).
sipri, sipri Yearbook 2003: Armaments, Disarmament, and International Security (oup 2003).
Stohl R and Grillot S, The International Arms Trade (Polity Press 2009).
Ulfstein G and others (eds), Making Treaties Work: Human Rights, Environment and Arms Control (cup 2007).
Van den Bossche P and Zdouc W, The Law and Policy of the World Trade Organisation: Text, Cases and Materials (4th edn., cup 2018).
Voon T, Mitchell A, and Liberman J (eds.), Regulating Tobacco, Alcohol, and Unhealthy Food (Routledge 2016).
Weeramantry G, Universalising International Law (Martinus Nijhoff Publishers 2003).
World Trade Organization, The Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations (20th printing, cup 2013).
Yihdego Z, The Arms Trade and International Law (Hart publishing 2007).
Journal Articles
Alvarez J, ‘The wto as Linkage Machine’ (2002) American Journal of International Law 146.
Bitzinger R, ‘The Globalization of the Arms Industry: The Next Proliferation Challenge’ (1994) International Security 170.
Brewster R, ‘Unpacking the State’s Reputation’ (2009) Harvard International Law Journal 231.
Brunnée J, ‘International Legal Accountability Through the Lens of the Law of State Responsibility’ (2005) Netherlands Yearbook of International Law 3.
Chaisse J, ‘Deconstructing the wto Conformity Obligation: A Theory of Compliance as a Process’ (2015) Fordham International Law Journal 5.
Doenges B, ‘The International Arms Trade’ (1976) Challenge 14–20.
Earnhart D and Glicksman R, ‘Coercive vs. Cooperative Enforcement: Effect of Enforcement Approach on Environmental Management’ (2015) International Review of Law and Economics 135.
Efrat A, ‘Toward Internationally Regulated Goods: Controlling the Trade in Small Arms and Light Weapons’ (2010) International Organization 97.
Fukui Y, ‘The Arms Trade Treaty: Pursuit for the Effective Control of Arms Transfer’ (2015) Journal of Conflict and Security Law 301.
Jackson J and Vazquez C ‘Some Reflections on Compliance with wto Dispute Settlement Decisions’ (2002) Law and Policy in International Business 555.
Jorgensen N, ‘State Responsibility for Aiding or Assisting International Crimes in the Context of the Arms Trade Treaty’ (2014) American Journal of International Law 722.
Kellman B, ‘Controlling the Arms Trade: One Important Stride for Humankind’ (2014) Fordham International Law Journal 687.
Linderfalk U, ‘State Responsibility and the Primary-Secondary Rules Terminology – The Role of Language for an Understanding of the International Legal System’ (2009) Nordic Journal of International Law 53.
Lindroos A, ‘Addressing Norm Conflicts in a Fragmented Legal System: The Doctrine of Lex Specialis’ (2005) Nordic Journal of International Law 27.
Lustgarten L, ‘The Arms Trade Treaty: Achievements, Failings, Future’ (2015) International and Comparative Law Quarterly 569.
Ossa R, “Trade Wars and Trade Talks with Data” (2014) The American Economic Review 4104.
Pauwelyn J, ‘Rules-Based Trade 2.0? The Rise of Informal Rules and International Standards and How They May Outcompete wto Treaties’ (2014) Journal of International Economic Law 739.
Simma B and Pulkowski D, ‘Of Planets and the Universe: Self-contained Regimes in International Law’ (2006) European Journal of International Law 483.
Staples S, ‘The Relationship Between Globalization and Militarism’ (2000) Social Justice 18.
Stavrianakis A, ‘Legitimising Liberal Militarism: Politics, Law and War in the Arms Trade Treaty’ (2016) Third World Quarterly 840.
Tocoian O, ‘The Home Market Effect in International Arms Trade’ (2015) Economic Inquiry 1751.
Wolfe R, ‘See You in Geneva? Legal (Mis)Representations of the Trading System’ (2005) European Journal of International Relations 339.
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