Law and the Arms Trade

Weapons, Blood and Rules

Laurence Lustgarten

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509922307
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This ground-breaking book offers an extensive legal analysis-grounded in public, EU, and international law-of arms trade regulation, integrated with insights drawn from international relations. The sale of weapons and related technologies is, globally, one of the most politically controversial and ethically contentious forms of commerce. Intimately connected with sustaining repressive governments and violations of international human rights and humanitarian law, arms exports are also a central element in the economic and strategic policies of the governments of all large industrial states. They have also been the source of abundant corruption, and of serious challenges to the norms and effectiveness of constitutional accountability in democratic states. On paper, the arms trade is heavily regulated: national legislation and international treaties are in place which purport to prohibit certain transactions and limit others. Yet despite its importance, legal and international relations scholarship on the subject has been surprisingly limited. This book fills this gap in the literature by examining and comparing the export control regimes of eight leading nations - USA, Russia, the UK, France, Germany, Sweden, China, and India - with chapters contributed by leading experts in the field of law and international relations.

PART I

Fundamental Considerations

1

The Arms Trade: A Critical Introduction

I.Introduction

Ours is a world of competing, often hostile, independent States. Each also requires some capability of internal order maintenance. What would be the result if all transfers of weapons and related technology across national boundaries were absolutely and effectively prohibited? Although several UN Member States do not currently possess standing armies,¹ all have some form of specialised force equipped with military hardware. How is this to be obtained, maintained and kept up-to-date? Putting the question another way, how in practice could these States exercise their fundamental international law right to self-defence,² if externally threatened, and maintain order domestically?

In theory, each could supply its own needs through home manufacture. To say this is to expose its unreality, indeed its economic absurdity. Small nations especially would lack the technical knowledge and skilled workforce, and for poorer ones, to establish an independent arms industry would, given their more vital needs, be a gross distortion of limited resources. Although ‘a traditional dictum of security policy, at least since Machiavelli, is that no state should rely on others to furnish the means of its own defence’,³ in an age of advanced technology, that is a luxury few can actually maintain. It is in fact to the advantage of many, perhaps most, States that they are able to acquire their means of defence from external sources; and although the concept of ‘comparative advantage’ drawn from classical economic theory too often serves to justify under-development of the economies of the Global South, this is one instance in which it does make good sense.

Indeed, the term ‘arms trade’ does not fully describe what may occur, because the transfer need not involve economic exchange: a producing State may, for various political reasons, choose to supply the weapons without cost, as was in fact the practice of the Superpowers during the first two decades of the Cold War.⁴ For this reason, if international regulation in particular is to be effective, it must apply to all ‘arms transfers’ – the language used in the Arms Trade Treaty.⁵ Nor can it be limited to ‘weapons’ or ‘arms’, but must encompass surveillance equipment and technology such as the software used to guide missiles and planes, and any type of equipment with the capacity to coerce or injure.

If this is correct, then some sort of system of international arms transfers is both inevitable and, to some extent, even desirable. To say this does not at all mean accepting that the present levels of armament throughout most of the world, or the uses to which those weapons are most often put, are either necessary or desirable. There is no contradiction between the following two ideas: 1) acceptance that in a world of competing, sometimes hostile States, all will require armaments and most will rationally choose to import them; and 2) a passionate belief that most States possess arsenals grossly in excess of what a rational assessment of self-defence requires, and that in varying degrees national self-aggrandisement, corruption, the determination of elites to control their populations by violent means, and short-term economic calculations, have all variously led to bloated accumulations of weapons at the expense of greater societal needs.

In light of the inevitability of international arms transfers, why then is the arms trade so much, and often justly, reviled? If most transactions were between two democratic states of reasonably similar levels of economic development when the recipient was not engaged in armed conflict – a sale of aircraft from the UK to, say, Australia – objections would likely be few and muted. But most transfers do not fit this pattern, and the political, humanitarian and economic objections to them are numerous and powerful. I shall identify and examine eight. Some, particularly the harmful effects on the exporting State, have not attracted the attention they merit. Most though have in various ways concerned the character of the importer, which determines how the equipment is likely to be used. However, before these are explored, it is necessary to highlight one particular type of weaponry which for many years was the primary focus of concern.

II.Small Arms and Light Weapons

Certain types of weapons, known collectively as small arms and light weapons (SALW), have been the cause of death of literally millions of people over the last two decades. The vast majority of the victims have been civilians, predominantly women and children, largely in Africa. In countries like Angola, the Congo (DRC), Liberia, Sierra Leone, Mali and Somalia, these have been the weapons of choice of both official armies and diverse unofficial forces – the latter variously described as insurgents, militias, private armies or resistance fighters, and generically described as non-State actors (NSAs). SALW are technologically simple, easily transportable, readily concealable, and their unit cost is relatively cheap. The iconic example is the Kalashnikov (the American M-16 is similar); but grenades and the so-called MANPAD (man-portable air defence system) which a small crew can transport and use to take down aircraft, are other much-used deadly items.⁶

Kofi Annan, when UN Secretary General, rightly described SALW as ‘the real weapons of mass destruction’.⁷ Trade in them is often illegal under various national laws, but ease of concealment amongst ships’ legitimate cargoes, and of transport by light aircraft landing in remote airstrips, makes these laws very hard to enforce. So too does the use of brokers, front companies and other intermediaries. In resource-rich areas, payment by the armed groups controlling a particular area may take the form of access to the raw materials: hence the term ‘conflict diamonds’ in places like Angola, Sierra Leone and the DRC.

SALW as instruments of carnage are not limited to areas of overt political instability. Latin America and several West Indian States have been subject to organised gun violence, a by-product of the lucrative market created by the drug prohibition policies of the USA, as rival criminal gangs fight murderously for control of the contraband and the supply routes. Mexico has been the most famously afflicted, but several Central American and West Indian States have suffered equally.⁸ Worst affected of all is Brazil, which endures the world’s highest rate of gun deaths, mostly arising out of drug trade-related criminality.⁹ With the partial exception of Brazil, which produces some of its own guns, virtually all the weapons and ammunition used in these killings are imported; their purveyors truly are ‘merchants of death’.¹⁰ The need for controlling the flow (and flood) of SALW is thus not restricted to situations of civil war or external war. Organised domestic criminal violence can be devastating too.¹¹ It should be noted however, that in certain States, civilian possession of firearms may be protected by domestic law, most notoriously in the USA by the Second Amendment of the Constitution, which establishes ‘the right to bear arms’.¹²

The overwhelming importance of SALW in delivering death and destruction, and maintaining repressive regimes, in countries in the South led to the heavy concentration of attention, political campaigning and diplomatic activity on them. For this reason they merit the particular attention of the preceding pages. However, recent developments, particularly the Saudi-led bombing campaign in Yemen, have brought more traditional means of warfare back into the limelight. It is therefore necessary to discuss the arms trade’s contribution to State violations of international law in a way that would not have been so apparent a decade ago. However, the discussion of the effects of the arms trade is best approached by beginning with the issues that historically have had most influence on political debate.

III.Internal Repression

Without becoming ensnared in controversy about precise numbers, it is fair to say that numerous States are either openly undemocratic; or deny significant human – civic or personal – rights to some or all of those under their control; or occupy territory whose inhabitants do not wish to be governed by them and regard them as an alien force; or treat significant ethnic or religious groups in oppressive or discriminatory ways. In many situations more than one of these abuses occurs, and they may all be grouped under the general heading of ‘internal repression’.¹³ A day seldom passes when examples are not found in the news, drawn from everywhere around the globe.¹⁴ The material means used by secret police and military forces against their own people, or to subject people under their direct control, is almost always imported weaponry, supplemented increasingly by surveillance technology.

Many citizens of Northern supplier countries¹⁵ object to their nation’s industry being used to deny people overseas freedoms they themselves enjoy, though that is not a unanimous view. In this instance, a sense of fellow-feeling about the value of democracy or human rights combines with revulsion at the violence committed. This position links with the impact of human rights on international political and legal agendas in the last two decades: greater salience, increased official rhetoric and sporadic practical action. The link, however, is often not made as tightly as it might be: restriction of arms sales on human rights grounds should be more central to the missions of official human rights agencies than it is now. This is beginning to be recognised with respect to Responsibility to Protect (R2P), as the UN has attempted to establish that concept as an international norm.¹⁶ The Secretary General’s Report of 2009 on its implementation stated that ‘Particular attention should be paid to restricting the flow of arms or police equipment, which could be misused by repressive regimes that are manifestly failing’ to meet their R2P obligations.¹⁷ It is important that future R2P initiatives go beyond this bare mention, but there is little sign that they have.

The role of imported arms in assisting violent suppression of opposition and human rights violations has probably been the leading argument put forward by critics of the arms trade, so that serious debate about repression as a reason for banning arms sales no longer takes place openly, at least in Europe. It is one of the primary grounds identified in the guidelines long operated by the European Union and now known formally as Criteria, to which approval of arms sales by national governments is supposed to conform.¹⁸ Legally binding since 2008, the so-called Common Position mandates denial of an export licence ‘if there is a clear risk that the military technology or equipment … might be used for internal repression’.¹⁹

Reluctance to sell arms to an internationally recognised government due to its dealings with its own people intrudes on concepts of sovereignty accepted for centuries as being fundamental to relations between independent States. When the would-be purchaser is a former colonial territory, allegations of neo-colonialism are sure to be heard. So too are allegations of hypocrisy, not only about human rights violations within the producer State itself, but more tellingly about ‘discrimination’ – inconsistent application of human rights standards depending on ulterior factors such as trade relations or wish for political favours or military assistance from particular would-be purchasers.²⁰ This important issue is taken up in chapter 14, in the context of international regulation under the Arms Trade Treaty.

IV.Endemic Corruption

Of all the products of international commerce, the trade...