Framework Convention on International Arms Transfers i. Article 1 Principal obligation ii

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Framework Convention on International Arms Transfers i PART I PART II iii Article 1 Principal obligation ii Contracting Parties shall adopt and apply in accordance with their domestic laws and

As its name indicates, the Framework Convention on International Arms Transfers ( the Framework Convention ) is a draft convention setting out certain core principles and mechanisms relating to

1 Framework Convention on International Arms Transfers i PART I PART II iii Article 1 Principal obligation ii Contracting Parties shall adopt and apply in accordance with their domestic laws and procedures a requirement that all international arms transfers be authorised. i What is a Framework Convention? As its name indicates, the Framework Convention on International Arms Transfers ( the Framework Convention ) is a draft convention setting out certain core principles and mechanisms relating to international transfers of arms. It is envisaged that the Framework Convention will be supplemented in due course by a number of protocols dealing with additional, specific dimensions of the problem. Like any other treaty, the Framework Convention will become a binding international instrument once signed and ratified by the requisite number of states. Why a Framework Convention? A Framework Convention is being proposed for a number of reasons. Firstly, it is recognised that while the international community needs urgently to agree a set of common core principles to regulate and control the arms trade, certain peripheral issues remain quite controversial. Rather than attempting to regulate all aspects of the arms trade in a comprehensive manner, therefore, a framework convention develops a binding regime step by step. It starts by laying down relatively uncontroversial substantive prohibitions as well as any necessary organs for their implementation. In the case of the Framework Convention, these prohibitions are based firmly on states existing commitments under international law. Once agreed, this framework can be supplemented by protocols negotiated at a later date dealing with more controversial issues. A second advantage of a framework convention is that detailed technical issues can also be addressed by means of subsequent protocols rather than encumbering the general instrument. Finally, proceeding by means of a framework convention gives states more flexibility in terms of their commitments. Once they have acceded to general convention they can decide which, if any, additional protocols also to ratify and can do so in a progressive manner. The scope of the Framework Convention: The Framework Convention focuses on limitations on states freedom to transfer arms. In so doing it codifies rules that currently exist in international law. It does not attempt to impose new limitations or rules. Important related issues such as brokering, licensed production, end-use monitoring and parliamentary scrutiny, as well as detailed technical mechanisms for the national implementation of the obligations under the Framework Convention can be addressed by subsequent protocols. ii Article 1 lays down the basic obligation requiring states parties to adopt national mechanisms for the authorisation of all international transfers of arms. It is envisaged that minimum requirements of such licensing system will be laid down in an Annex to the Framework Convention. In any event, as a minimum, each application for an authorisation will have to be reviewed individually. This obligation is an element in the conventional arms control procedures of the majority of states. Such an obligation is also incorporated into regional arms control measures such as the EU Code of Conduct on Arms Transfers and the OSCE Document on Small Arms. iii Part II of the Framework Convention contains the substantive sections of the Convention. The first two provisions codify existing limitations in international law on states freedom to transfer and to authorise Mailing Address: c/o Fundación Arias, Apartado San José, Costa Rica Fax: info@armslaw.org

2 Article 2 Express limitations iv Contracting Parties shall not authorise international transfers of arms which would violate their obligations under international law. These shall include: a. obligations arising under decisions of the United Nations Security Council; v b. obligations arising under international treaties by which the Contracting Parties are bound; vi c. transfers of arms the use of which is prohibited by international humanitarian law because they are incapable of distinguishing between combatants and civilians or are of a nature to cause superfluous injury or unnecessary suffering; and vii d. obligations arising under customary international law. viii transfers of weapons. Article 2 lays down express limitations, while Article 3 deals with the limitations based on the anticipated use made of weapons by the recipient. iv Article 2 codifies express limitations either on transfers of all arms to specific countries or of specific weapons to all countries. These limitations are those : v imposed by means of Security Council embargoes on transfers of weapons to specific states. Such decisions are taken by the Security Council under Chapter VII of the UN Charter. As such they are binding on all UN Member States, which are obliged to take the necessary measures to implement, apply and enforce them at the national level. In practice, embargoes are enforced and violations prosecuted much more vigorously by some member States than by others. In a resolution of 1998 the Security Council called upon states to adopt legislation making the violation of arms embargoes a criminal offence. vi imposed by embargoes adopted by other international bodies such as the European Union or other regional/economic organisations or arising as a result of a treaty expressly prohibiting the transfers of the weapons in question. Such treaties would include the 1972 Biological Weapons Convention, the 1993 Chemical Weapons Convention, the two most recent protocols to the 1980 Convention on the Use of Certain Conventional Weapons Which May Be Considered Excessively Injurious, and the 1997 Anti-personnel Mines Convention. Other relevant treaties would include those prohibiting transfers of weapons to specific areas. In practice, however, the only such agreement which is currently in force is the regional and non-binding threeyear moratorium on small arms imports, exports, and manufacture concluded by ECOWAS states in vii arising from international humanitarian law ( IHL ). These limitations are additional to those identified in the previous subsection and apply, first, to weapons which are not the subject of a specific convention but whose use is prohibited because they are incapable of distinguishing between civilians and combatants or because they cause superfluous injury or unnecessary suffering both prohibited by IHL. The prohibition on transfers is based on the fact that a power to transfer weapons whose use is prohibited would be irreconcilable with states duty to respect and ensure respect for IHL enshrined in common Article 1 of the four Geneva Conventions of This prohibition would also cover those weapons whose use is prohibited by a specific convention which does not, however, expressly prohibit their transfer. The rationale for including such weapons is that the more recent conventions have included a prohibition on transfers and thus it its reasonable to argue that such a prohibition should be read into the earlier instruments such as the first three protocols to the 1980 Convention. This approach is reinforced by the preceding argument concerning the duty of all states to respect and ensure respect for IHL. viii arising under customary law. It is well established that transfers of weapons by one state into the territory of another without the latter s consent may amount to unlawful interference in the affairs of the recipient state. This is particularly the case if the weapons are destined to supply opposition forces in the recipient state. This 2

3 Article 3 Limitations based on use ix Contracting Parties shall not authorise international transfers of arms in circumstances in which there exists a reasonable risk that the arms would: a. be used in violation of the prohibitions on: the threat or use of force; threat to the peace; breach of the peace or acts of aggression; unlawful interference in the internal affairs of another State; x b. be used to commit serious violations of human rights; xi c. be used to commit serious violations of international humanitarian law applicable in international or non-international armed conflict; provision also covers any principles of customary law that may emerge in the future in relation to transfers of arms. ix Article 3 deals with limitations on states freedom to transfer weapons based on the anticipated use that will be made of the weapons by the recipient state. While the limitations in Article 2 make any transfer illegal, those in Article 3 are dependent on the use made by the recipient of the weapons. The exporting state s responsibility is based upon its international legal obligation not to participate in the wrongful acts of the recipient state. If a state commits a violation of international law, it bears primary responsibility for it. However, there may be circumstances in which a state may have secondary or indirect responsibility for a violation of international law committed by another state. This responsibility for assistance in the commission of an internationally wrongful act has been recognised by the International Law Commission in its Draft Articles on State Responsibility. Draft Article 16, as adopted in August 2000, provides that: A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State. Thus, in situations where a state caries out an act which is not necessarily wrongful itself, but which assists a second state in the commission of a violation of international law, the first state may be responsible for participating in the wrongful act committed by the second, provided it had been aware of the intended wrongful act. This principle of indirect responsibility imposes a number of important limitations on states freedom to transfer weapons. The wrongful acts of recipient states for which exporting states could bear indirect responsibility include: x violations of the prohibition on the threat or use of force laid down in Article 2(4) of the UN Charter and existing in customary law, or the commission of acts of aggression or of unlawful interference in the internal affairs of anther state. The principle of non-intervention is expressed in the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and Protection of their Independence and Sovereignty adopted by the UN General Assembly in xi the commission of serious violations of human rights. These would include violations of the non-derogable provisions of the 1966 International Covenant on Civil and Political Rights and of regional instruments such as the 1950 European Convention for the Protection of Fundamental Rights and Freedoms, the 1969 American Convention on Human Rights or the 1980 African Charter on Human and Peoples Rights, as well as serious violations of instruments focusing on specific issues, such as the 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, the 1979 UN Code of Conduct for Law Enforcement Officials, and the 1990 UN Basic Principles on the Use of Force and Firearms by law Enforcement Officials. 3

4 d. be used to commit acts of genocide or crimes against humanity; xii e. be diverted and used to commit any of the acts referred to in the preceding sub-paragraphs. Article 4 Other considerations xiii Contracting Parties shall avoid authorising international transfers of arms in circumstances in which there are reasonable grounds for considering that the transfer in question would: a. be used for or to facilitate the commission of violent crimes; b. adversely affect political stability or regional security; c. adversely affect sustainable development; or d. be diverted and used in a manner contrary to the preceding sub-paragraphs. PART III xiv Article 5 National measures xv xii c) and d) the commission of serious violations of international humanitarian law, crimes against humanity or acts of genocide. A recent and exhaustive list of serious violations of IHL applicable in both international and non-international armed conflicts as well as of crimes against humanity was laid down in the 1998 Statute of the International Criminal Court. These provisions are consistent with the existing obligation of High Contracting Parties to the Geneva Conventions to respect and ensure respect for IHL in all circumstances. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide lays down a definition of the crime of genocide. The criminal acts covered are not only genocide but also conspiracy to commit genocide. It is unlikely that a state that assisted in the perpetration of a genocide by providing the weapons with which the genocide was committed would have the intent to destroy or whole or in a national, ethnical, racial or religious group required by the Convention for its acts to amount to complicity in genocide. In situations where this intent is absent, the supply of weapons in circumstances in which it is apparent that they will be used to perpetrate a genocide will nevertheless amount to a violation of international law. xiii Unlike the two preceding provisions, Article 4 does not outright prohibit the transfer of weapons. Instead, it requires states to take into account the effect of any proposed transfer and to avoid authorising if it is likely to have certain effects. The first of these circumstances is the likelihood that the weapons will be used for the commission of violent crimes. This provision focuses on the acts of private individuals that, unlike those of governments or armed opposition groups, cannot be considered violations of international humanitarian law or human rights law but which are nevertheless an extremely important consequence of the proliferation of arms. The second effect that should be considered is the impact of the transfer on the political stability and regional security of the recipient state and the region. The third effect to be taken into account is whether the transfer will adversely affect sustainable development. The above two provisions are commonly referred to in regional political agreements on criteria for international arms transfers. xiv Part III of the Framework Convention lays down the implementation mechanisms to be adopted at the national and international level. 4

5 Contracting Parties shall establish such mechanisms of national law as are necessary to ensure that the requirements of this Convention are effectively applied in accordance with the minimum standards set out in Annex I. Article 6 International measures xvi 1. Contracting Parties shall establish an international registry of international arms transfers. 2. Contracting Parties shall submit to the international registry an annual report on all aspects relating to arms transfers from or through their jurisdiction. 3. The international registry shall publish an annual report reviewing the annual reports of the Contracting Parties. PART IV xvii Article 7 Relation to other obligations xviii The obligations set out in this Convention shall be applied as a minimum standard, without prejudice to any more stringent national or other requirements. Article 8 Protocols xix 1. This Convention may be supplemented by one or more protocols. xv Article 5 deals with national measures and refers to an Annex that will include minimum standards of national implementation. These remain to be drafted but will include rules concerning licensing requirements for example, the need for a transaction-by-transaction licensing mechanism; details of the minimum information that must be disclosed by applicants for licences; as well as rules relating to the licensing process more generally, such as mechanisms for parliamentary scrutiny, public accountability and, possibly, national complaints mechanisms. xvi Article 6 deals with implementation at the international level. The mechanisms are very basic: an international registry will be established to which states are required to report annually and which will itself prepare an annual report on the basis of the information received. Specific details of states reporting obligations as well as any additional international implementation measures will be laid down in a protocol to the Framework Convention. xvii Part IV of the Framework Convention contains the concluding provisions. xviii Article 7 is an express statement that the principles laid down in the Framework Convention are to be applied as a minimum and shall not prejudice any more stringent obligations assumed by states nationally or internationally xix Article 8 sets out rules for the expansion for the convention by means of protocols. From this provision it is apparent that the Framework Convention will be open for ratification by both states and regional economic integration organisations, such as the European Union. 5

6 2. In order to become a Party to a protocol, a State or regional economic integration organisation must also be a Contracting Party to this Convention. 3. A Contracting Party to this Convention is not bound by a protocol unless it becomes a Party to the Protocol in accordance with the provisions thereof. 4. Any protocol to this Convention shall be interpreted together with this Convention, taking into account the object and purpose of that protocol. Article 9: Definitions xx For the purpose of this Convention: a. Arms shall refer to: a) Weapons designed for personal use or for use by several persons serving as a crew, including but not limited to: revolvers and self-loading pistols, rifles and carbines, sub-machine guns, assault rifles and light machine-guns (small arms); heavy machine-guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns, recoilless rifles, portable launchers of anti-tank missile and rocket systems, portable launchers of anti-aircraft missile systems and mortars of calibres of less than 100 mm, ammunition and explosives, including cartridges (rounds) for small arms, shells and missiles for light weapons, anti-personnel and anti-tank hand grenades, landmines, explosives, and mobile containers with missiles or shells for single-action anti-aircraft and anti-tank systems. b) Major weapons systems, their parts, components, ammunition and related equipment including but not limited to: artillery, bombs, torpedoes, rockets, missiles, military ground vehicles, vessels of war, aircraft designed for military use, kinetic energy weapons systems, armour or other protective equipment, specialized equipment for military training and direct energy weapons systems. c) Paramilitary, police and security equipment, its parts, components, accessories and related equipment including but not limited to: utility vehicles with ballistic protection, imaging or countermeasure equipment and components and accessories specifically designed for military use, acoustic devices and components suitable for riot control purposes, anti-riot and ballistic shields, leg-irons, gang-chains, shackles and electric-shock belts specially designed for restraining human beings, portable anti-riot devices for administering an incapacitating substance, water-cannon, riot control vehicles which have been electrified in order to repel boarders, portable riot control or self-protection devices that administer an electric shock, including electric-shock batons, electric-shock shields, stun-guns, electric-shock dart guns and tasers. xx Article 9 lays down definitions. The most important is that of the arms covered by the framework Convention. Some weaknesses in the definition of arms have been identified and this definition is currently under review. One version of text covering only small arms and light weapons is being developed to be used exclusively for promoting the principles behind the Framework Convention in UN and other fora where the scope of discussion is limited to such weapons. The organizations involved in drafting and promoting the Framework Convention affirm that in addition to Small Arms and Light Weapons, the principles and mechanisms laid out in the Framework Convention need to be applied equally to the broadest possible range of conventional weapons and technical asistance and material devices designed for training to make use of weapons. 6

7 d) Military, police and security training, including the provision of expertise, knowledge or skill in the use of weapons, munitions, paramilitary equipment, components, and related equipment. e) Sensitive military and dual-use technologies, including but not limited to: encryption devices, certain machine tools, super-computers, gas-turbine and rocketpropulsion technology, avionics, thermal-imaging equipment and chemical irritants. b. International transfers shall refer to the movement of arms between two or more jurisdictions pursuant to an agreement regardless of whether for consideration or otherwise. Article 10: Signature, ratification and entry into force 1. [Ratification] 2. [Accession] 3. [Entry into force] Article 11: Dispute settlement xxi xxi Finally, Articles 10 and 11 will lay down rules relating to ratification and dispute settlement processes. 7

DRAFT FRAMEWORK CONVENTION ON INTERNATIONAL ARMS TRANSFERS i PART I. Article 1 [Authorization of International Arms Transfers ii ]

DRAFT FRAMEWORK CONVENTION ON INTERNATIONAL ARMS TRANSFERS i Preamble [...] PART I Article 1 [Authorization of International Arms Transfers ii ] Contracting Parties shall adopt and apply in accordance