Jump to Content Jump to Main Navigation
The Arms Trade Treaty: A Commentary by Clapham, Andrew; Casey-Maslen, Stuart; Giacca, Gilles; Parker, Sarah (16th June 2016)

Art.5 General Implementation

Stuart Casey-Maslen, Andrew Clapham, Gilles Giacca, Sarah Parker

From: The Arms Trade Treaty: A Commentary

Andrew Clapham, Stuart Casey-Maslen, Gilles Giacca, Sarah Parker

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 21 May 2019

Subject(s):
Arms control — Warfare, air — Warfare, land — Warfare, sea — Weapons — Humanitarian intervention — International peace and security

(p. 164) Article 5.  General Implementation

  1. 1.  Each State Party shall implement this Treaty in a consistent, objective and non-discriminatory manner, bearing in mind the principles referred to in this Treaty.

  2. 2.  Each State Party shall establish and maintain a national control system, including a national control list, in order to implement the provisions of this Treaty.

  3. 3.  Each State Party is encouraged to apply the provisions of this Treaty to the broadest range of conventional arms. National definitions of any of the categories covered under Article 2(1)(a)–(g) shall not cover less than the descriptions used in the United Nations Register of Conventional Arms at the time of entry into force of this Treaty. For the category covered under Article 2(1)(h), national definitions shall not cover less than the descriptions used in relevant United Nations instruments at the time of entry into force of this Treaty.

  4. 4.  Each State Party, pursuant to its national laws, shall provide its national control list to the Secretariat, which shall make it available to other States Parties. States Parties are encouraged to make their control lists publicly available.

  5. 5.  Each State Party shall take measures necessary to implement the provisions of this Treaty and shall designate competent national authorities in order to have an effective and transparent national control system regulating the transfer of conventional arms covered under Article 2(1) and of items covered under Article 3 and Article 4.

  6. 6.  Each State Party shall designate one or more national points of contact to exchange information on matters related to the implementation of this Treaty. Each State Party shall notify the Secretariat, established under Article 18, of its national point(s) of contact and keep the information updated.

(p. 165) Overview

5.01  Article 5 sets out in general terms the obligation on each state party to implement the Arms Trade Treaty (ATT) at national level, in particular by establishing and maintaining a national control system for the transfer of conventional arms and integral parts and components and for ammunition/munitions. This is the only provision1 in the ATT that obliges states parties to set up national mechanisms to regulate conventional arms transfers (as opposed to transfers of parts and components and ammunition/munitions).2

5.02  Article 5 also offers further detail on the scope of the treaty outlined in Article 2(1) by requiring each state party to regulate, at a minimum, battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, and missiles and missile launchers in accordance with the definitions under the United Nations Register of Conventional Arms (UNROCA) as at 24 December 2014; and small arms and light weapons, as defined under the 2005 International Tracing Instrument.3

Relationship to Other Provisions

5.03  Article 5 explicitly refers to four other provisions: paragraph 1 of Article 2 (Scope), Article 3 (Ammunition/Munitions), Article 4 (Parts and Components), and Article 18 (Secretariat). Article 5(5) relates indirectly to Article 14 (Enforcement), though the interrelationship between the two provisions is not entirely clear. Article 5 also incorporates into the general implementation obligations the duty to ‘bear … in mind’ the eight principles elaborated in the preambular Principles section. More broadly, however, the general nature of the obligations in Article 5 means that this provision is relevant for almost all of the other articles of the ATT.

5.04  As noted in the overview above, Article 5(3) provides detail on which conventional arms fall under the scope of the treaty further to the categories listed in Article 2(1). It further specifies that the control regime whose establishment and maintenance Article 5 explicitly requires must encompass not only those conventional arms but also the ammunition/munitions and parts and components described in Articles 3 and 4, respectively.

5.05  The ATT Secretariat, whose establishment Article 18 of the treaty calls for, is referred to twice in Article 5. Under paragraph 4, each state party is obliged to provide its national control list to the Secretariat, which in turn will make it available to other states parties. In accordance with Article 5(6), each state party must designate a national point of contact to exchange information on treaty implementation and provide up-to-date details of that point of contact to the Secretariat.

(p. 166) Preparatory Discussions and Negotiations

5.06  A general provision on treaty implementation was included in the Chair’s Draft Paper of 14 July 2011. Article VI (Implementation) contained six draft provisions. The first obliged each state party not to implement the treaty in a way that would ‘hamper’ the right of self-defence of any other state party. This draft provision was not ultimately included in the treaty.4 The second draft provision prohibited states parties from implementing the treaty in a discriminatory or subjective manner. This is included in a modified form in Article 5(1) and also reflected in the preambular Principles section.5 The third required states parties to take ‘necessary legislative and administrative measures’ to implement the treaty, an obligation that ultimately became, albeit in modified forms, Article 5(5) and Article 14 of the ATT (Enforcement).

5.07  The fourth draft provision of the July 2011 text called for a national point of contact to be identified and communicated to the Secretariat. As already noted, these requirements were incorporated in Article 5(4) and (6). The fifth draft provision in Article VI allowed each state party to refuse, suspend, or revoke any transfer. This provision was not reflected in the ATT as adopted, though, as discussed below,6 there is no obligation under international law on any state to authorize a proposed transfer. This is also reflected in preambular paragraph 12, where it is emphasized that states may adopt additional (stricter) measures on transfer than those imposed by the treaty.

5.08  The sixth draft provision of the July 2011 text would have required states parties to consult and share information on the implementation of the treaty ‘as a confidence-building measure’. One of the items listed in Article 1 (Object and purpose) of the ATT is the purpose of ‘[p]‌romoting cooperation, transparency and responsible action by States Parties in the international trade in conventional arms, thereby building confidence among States Parties’.7 Under paragraph 1 of Article 15 (International Co-operation), states parties are required to co-operate with each other to ‘effectively implement’ the treaty. Article 15(2) encourages states parties to ‘facilitate international cooperation, including exchanging information on matters of mutual interest regarding the implementation and application of this treaty pursuant to their respective security interests and national laws’.

5.09  The formal draft ATT, presented to the United Nations Conference on the Arms Trade Treaty on 26 July 2012, contained an Article 5 entitled General Implementation. Paragraph 1 was very similar to the provision ultimately adopted as Article 5(1).8 Draft Article 5(2), though, aroused considerable controversy. It stipulated that: ‘The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments. This Treaty shall not be cited as grounds for voiding contractual obligations under defence cooperation agreements concluded by States Parties to this Treaty.’ According to a Briefing on the draft ATT published by the Geneva Academy of International Humanitarian Law and Human Rights, the first sentence was ‘potentially (p. 167) the greatest loophole in the entire treaty. It appears to allow a state party to balance, prioritise, or contract out of its obligations, and to decide, for example, that a state-to-state contract to sell or otherwise transfer conventional arms will override the obligations in Article 4 [National Assessment] and potentially even Article 3 [Prohibited transfers] of the draft ATT.’9 It was not included in the ATT as adopted.

5.10  The second sentence of the draft text (‘This Treaty shall not be cited as grounds for voiding contractual obligations under defence cooperation agreements concluded by States Parties to this Treaty’), also the subject of considerable debate, was included as paragraph 2 of Article 26 (Relationship with other international agreements), but with a significant change that limited the exception to agreements between states parties to the ATT.10

5.11  Draft Article 5(3)11 was included, after amendment, as Article 5(5). The requirements in paragraph 4 of the draft12 were incorporated in Article 5(4) and (6). Draft Article 5(5) and (6)13 were further elaborated by Mexico at the Final United Nations Conference on the Arms Trade and ultimately included in a new provision, Article 11 (Diversion).

5.12  On 22 March 2013, at the final diplomatic conference, Ambassador Peter Woolcott, the Conference President, presented a text that included significant changes to draft Article 5 (still entitled General Implementation). The new draft was close to the text ultimately adopted yet retained the controversial first sentence of paragraph 2 described above.14 It also removed the draft provisions relating to diversion, which, as noted, were reflected in a new Article 11.

  1. 1.  Each State Party shall implement this Treaty in a consistent, objective and non-discriminatory manner, in light of the object and purpose of this Treaty.

  2. 2.  The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments. This Treaty shall not be cited as grounds for voiding contractual obligations under defence cooperation agreements concluded by States Parties to this Treaty.

  3. 3.  Each State Party shall establish and maintain a national control system in order to implement the provisions of this Treaty.

  4. 4.  Each State Party is encouraged to apply the provisions of this Treaty to the broadest range of conventional arms. No national definition of any of the categories covered in Article 2(1) shall cover less than the descriptions used in the United Nations Register of Conventional Arms at the time of entry into force of this Treaty.

  5. (p. 168) 5.  Each State Party shall take measures necessary to implement the provisions of this Treaty and shall designate competent national authorities in order to have an effective and transparent national control system regulating the international transfer of conventional arms.

  6. 6.  Each State Party shall designate one or more national points of contact to exchange information on matters related to the implementation of this Treaty. A State Party shall notify the Secretariat, established under Article 18, of its national point(s) of contact and keep the information updated.

The President’s Non-Paper of 27 March 2013, which became the ATT, deleted the first sentence of draft paragraph 2 entirely. Other changes, to paragraph 3, served to clarify the source of the detailed description of conventional arms, in particular relating to small arms and light weapons.

Commentary

Paragraph 1

Each State Party shall implement this Treaty in a consistent, objective and non-discriminatory manner, bearing in mind the principles referred to in this Treaty.

5.13  The provision in Article 5(1) requires all states parties to the ATT to implement the treaty in a consistent, objective, and non-discriminatory manner. This echoes, to some extent, the fundamental principle of the law of treaties whereby a treaty must be implemented (‘performed’) in good faith.15 It also implicitly appears to exhort states parties to eschew politics and political bias in arms-transfer decisions.16

5.14  In their implementation of the treaty, states parties are also called on to bear in mind the Principles elaborated in the preambular section. In that section they note their determination to act in accordance with those principles, which are summarized as follows:

  • •  The right of states to self-defence

  • •  The settlement of international disputes by peaceful means

  • •  Refraining from the threat or use of force against the territorial integrity or political independence of any state

  • •  Non-intervention in matters essentially within the domestic jurisdiction of a state

  • •  Respecting and ensuring respect for international humanitarian law and human rights

  • •  The responsibility of states to regulate international trade in conventional arms and prevent diversion and to establish national control systems

  • •  Respect for the interests of states to acquire, produce, export, import, and transfer conventional arms.

The eighth and final principle uses very similar language to Article 5(1): ‘Implementing this Treaty in a consistent, objective and non-discriminatory manner’.17

5.15  Despite the obligation to implement the treaty consistently, objectively, and in a non-discriminatory manner, it remains unclear to what extent this provision prevents a state (p. 169) party from responding in a different manner to a request for authorization of export by two states parties in a similar situation.18 For example, granting a request for authorization for an export of conventional arms to one but not to the other could be taken to amount to inconsistency of treaty application, if the export assessment envisaged by Article 7 concluded that the risk of any of the negative consequences in Article 7(1) was not ‘overriding’ in either case. At the same time, there is no obligation on any state under customary international law, much less the ATT, to transfer weapons to any other state. During the negotiations certain states, notably Egypt, sought to include a provision in the ATT that would have required an exporting state party to authorize a transfer unless the criteria in Articles 6 or 7 obliging denial were fulfilled. These attempts proved unsuccessful.

Paragraph 2

Each State Party shall establish and maintain a national control system, including a national control list, in order to implement the provisions of this Treaty.

The National Control System

5.16  Paragraph 2 of Article 5 contains one of the core obligations of the ATT: to establish and maintain a national control system. Such a control system is essential if a state party is to apply effectively the prohibitions and denials of request for transfer or export authorization specified under Articles 6 and 7 of the treaty, respectively. It enables a state party to assess dispassionately each request for authorization in accordance with international law, particularly the ATT and the criteria laid down in Articles 6 and 7, as well as national laws and regulations, and to make a decision based on the evidence. As noted above, the sixth principle set out in the ATT’s Principles section had referred to the ‘responsibility of all States, in accordance with their respective international obligations, to effectively regulate the international trade in conventional arms … as well as the primary responsibility of all States in establishing and implementing their respective national control systems’.19

5.17  The ATT does not articulate in detail the architecture or composition of the system for a state party’s national control regime, only that it must have one and that the system must contain a national control list specifying which conventional arms, ammunition/munitions, and parts and components are to be regulated by that control regime. Implicitly, though, any effective national control system must require any individual or entity, whether private or public, to seek and receive authorization from the control system prior to transferring any conventional arms, integral parts of components, or associated ammunition contained in the national control list. The system must enable a state to be in a position to assess objectively each request and to make a principled and consistent decision based on the evidence.

5.18  Further, as discussed below, in accordance with Article 5(5) the national control system must include the designation of ‘competent national authorities’ in order to ensure ‘an effective and transparent national control system regulating the transfer’ of all conventional arms covered under Article 2(1) and of ammunition/munitions and parts and components covered under Articles 3 and 4, respectively. It must also address, as relevant, (p. 170) all the activities that make up the definition of transfer under the ATT: export, import, transit, trans-shipment, and brokering.20

5.19  Nonetheless, each state party has considerable latitude regarding the control regime’s form, structure, and legislative basis. There is, for example, no firm obligation to make the regime an interministerial entity, although a range of government ministries will probably be concerned by arms transfers, such as customs, defence, foreign affairs, interior, justice, trade, and transport, as well as finance. It can presumably be a state system, it can be quasi-governmental in nature, or it may even be contracted out to the private sector (though without prejudice to the ultimate responsibility of the state under international law to ensure that its international legal obligations are respected).

5.20  In a 2015 publication, the Small Arms Survey identified some of the general principles21 that would apply to authorizations. Notably these are:

  • •  Timing and sequencing: transfer authorizations should be issued prior to a transfer of conventional arms or other items taking place, and should not be issued retroactively.

  • •  Validity: transfer authorizations should be limited in time, and the expiry date should be clearly indicated.

  • •  Revocation: states parties should reconsider a transfer authorization that has been granted in certain circumstances, for example, if the authorization was obtained on the basis of inaccurate information, if there is a change in the situation in the importing state, or if new relevant information comes to light that prompts the exporting state to reassess the authorization (as encouraged under Article 7(7) of the treaty).

  • •  Reporting: entities granted a transfer authorization should be required to report to or notify the competent national authority on their use (i.e. report when the activities authorized have taken place).22

National Legislation

5.21  Legislation to create the control regime is not an explicit requirement under the ATT although Article 14 (Enforcement) requires each state party to take ‘appropriate measures to enforce national laws and regulations that implement the provisions’ of the ATT (emphasis added). This implies that legislation will be an element in the national implementation of the treaty.23

National Control List

5.22  Paragraph 2 also states that national control lists are to be an important element of the national control system. A national control list is, in general terms, a list of items that are subjected to special regulation by a state. The national control list is the mechanism by which the ATT seeks to codify at national level the arms and ammunition and integral components whose transfer is to be controlled by each state party. The list must define (p. 171) which conventional arms are covered by the national control system, in accordance with Articles 2(1) and 5(3).

5.23  According to a 2016 Small Arms Survey publication, the national control list ‘promotes confidence’ among states parties ‘and can also ensure broader transparency if a state party chooses, in line with the encouragement in Article 5(4), to make its control list publicly available. This can also generate a more open environment in which industry can operate.’24 The Survey further opines:

A national control list is generally included in national legislation or official policy documents that govern the export and import of controlled items. Since various government agencies involved in the regulation and processing of arms transfers should play a role in the administration and implementation of a national control list, a national supporting body should be established to provide the requisite administrative support. This body should have the capacity to manage the day-to-day operation of national ATT implementation and coordination tasks among the ministries responsible …25

Paragraph 3

Each State Party is encouraged to apply the provisions of this Treaty to the broadest range of conventional arms. National definitions of any of the categories covered under Article 2(1)(a)–(g) shall not cover less than the descriptions used in the United Nations Register of Conventional Arms at the time of entry into force of this Treaty. For the category covered under Article 2(1)(h), national definitions shall not cover less than the descriptions used in relevant United Nations instruments at the time of entry into force of this Treaty.

Treaty Scope and National Definitions

5.24  As discussed in the commentary on Articles 2(1) and 3, the ATT does not cover all conventional arms or ammunition/munitions. Examples of weapons that are not strictly within the scope of the treaty include the following:

  • •  manually emplaced landmines (whether anti-personnel or anti-vehicle)

  • •  hand grenades

  • •  flamethrowers

  • •  directed energy weapons, including lasers

  • •  electro-shock weapons, such as Tasers26

  • •  antique small arms and light weapons and their replicas

  • •  air guns

  • •  knives

  • •  explosives (demolition charges, detonating cord, and detonators).

Under Article 5(3), each state party is nonetheless ‘encouraged’ to apply the treaty to ‘the broadest range of conventional arms’.

5.25  Each state party must ensure that its national control regime covers at least all battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack (p. 172) helicopters, warships, missiles, and missile launchers as described in the UNROCA as of the ATT’s entry into force (i.e. 24 December 2014). These descriptions are set out in detail in the commentary on Article 2(1).

5.26  With respect to small arms and light weapons, national definitions must cover at least the descriptions applicable on that same date as ‘used in relevant United Nations instruments’. In fact, as the commentary on Article 2(1) explains, there is effectively one ‘relevant’ UN instrument, namely the 2005 International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons, better known as the International Tracing Instrument or ITI.27 According to Article II(4) of the ITI:

For the purposes of this instrument, ‘small arms and light weapons’ will mean any man-portable lethal weapon that expels or launches, is designed to expel or launch, or may be readily converted to expel or launch a shot, bullet or projectile by the action of an explosive, excluding antique small arms and light weapons or their replicas. Antique small arms and light weapons and their replicas will be defined in accordance with domestic law. In no case will antique small arms and light weapons include those manufactured after 1899:

‘Small arms’ are, broadly speaking, weapons designed for individual use. They include, inter alia, revolvers and self-loading pistols, rifles and carbines, sub-machine guns, assault rifles and light machine guns;

‘Light weapons’ are, broadly speaking, weapons designed for use by two or three persons serving as a crew, although some may be carried and used by a single person. They include, inter alia, 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 a calibre of less than 100 millimetres.

Paragraph 4

Each State Party, pursuant to its national laws, shall provide its national control list to the Secretariat, which shall make it available to other States Parties. States Parties are encouraged to make their control lists publicly available.

5.27  Each state party is required to provide its national control list to the treaty Secretariat established under Articles 17 and 18, which will ‘make it available’ to other states parties. Based on experience from disarmament treaties such as the 1997 Anti-Personnel Mine Ban Convention and the 2008 Convention on Cluster Munitions, this process might be achieved by use of uploading the national control lists to a website. In the case of the ATT, however, as states parties are only encouraged, not required, to make their control lists publicly available, the Secretariat will need to find a way of dealing with this.28

‘Pursuant to its national laws’

5.28  The phrase ‘pursuant to its national laws’ needs explanation. Under Article 2(2) of the draft ATT of 26 July 2012, each State Party was required to ‘establish or update, as (p. 173) appropriate, and maintain a national control list’ to cover items within paragraph 1 of the same article. It was further required that each state party ‘publish its control list to the extent permitted by national law’. In the Final United Nations Conference on the Arms Trade Treaty, the President’s Non-Paper of 27 March 2013 stipulated that each state party, ‘pursuant to its national laws, shall provide its national control list to the Secretariat, which shall make it available to other States Parties’.29 The phrase was also used in several other redrafted provisions following the President’s ‘legal scrub’ to replace the words ‘in accordance with its national laws’.30

5.29  It has sometimes been suggested that the phrase ‘pursuant to its national laws’ might make the relevant treaty obligations subservient to each state party’s national legislation. This is not persuasive. Consonant with Article 27 of the 1969 Vienna Convention on the Law of Treaties, which provides that a state party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’, national laws do not justify a simple refusal to provide a national control list. The phrase does, though, allow each state party a margin of discretion in the level of detail that it must provide, for example on the basis of interests of national security. This could allow a state to keep confidential certain technical military information on conventional arms or other items it had decided to regulate at national level in accordance with the definitions laid down by the treaty.

Paragraph 5

Each State Party shall take measures necessary to implement the provisions of this Treaty and shall designate competent national authorities in order to have an effective and transparent national control system regulating the transfer of conventional arms covered under Article 2(1) and of items covered under Article 3 and Article 4.

Necessary Measures

5.30  Under paragraph 5 of Article 5, each state party is required to take ‘necessary’ measures to implement the treaty and to designate competent national authorities so as to ensure an ‘effective and transparent’ national control system to regulate arms transfers. The paragraph was one of a considerable number of provisions whose drafting was improved over its counterpart in the draft ATT of 26 July 2012.31 That provision had required each state party to, inter alia, take ‘all appropriate legislative and administrative measures necessary to implement the provisions’ of the treaty. The scope of the measures to be taken is broader in the ATT as adopted than in the 2012 draft. Nevertheless, the final treaty text did not include the word ‘all’ before ‘measures’, nor specify that they needed to include both legislative and administrative measures.

5.31  There is apparent overlap between this paragraph and Article 14 (Enforcement), though the precise distinction between the two provisions is somewhat elusive. Under Article 14, each state party is required to take ‘appropriate measures to enforce national laws and regulations that implement the provisions’ of the treaty. This suggests that Article 5(5) focuses more on the duty of a state party to take proactive action to promote treaty implementation, including by adopting national laws and regulations, whereas Article 14 concentrates rather on the reactive duty to prevent or repress violations by individuals or (p. 174) companies on the basis of national legislation or administrative regulations existing at the relevant moment in time.32

5.32  The term ‘necessary’ reflects the different situation of states parties. Land-locked states and island states may need to take different measures with regard to transits, for instance. Measures that states need to take to implement the ATT could potentially include the adoption of legislation, creation of administrative structures, and provision of appropriate resources, enabling them to ensure control over international arms transfers, exchange relevant information with partner states, and address measures to prevent diversion.

Competent National Authorities

5.33  The second part of the provision obliges each state party to designate competent national authorities to oversee and/or manage the national control system. The term ‘competent’ may generally be interpreted to cover notions of capability or mandate (or both). The reference to an ‘effective’ national control system, though, presumably implies possession both of relevant capacities and of authority to function. The interpretation of the term ‘transparent’ is harder to discern, because it is not clear who should benefit from that transparency: ordinary citizens, industry, or just other states (parties).

5.34  As noted above, the nature of the authority of a national control system will usually be a governmental agency under the political supervision of a ministry, an interministerial agency, or an agency independent of the government but under the state’s jurisdiction (and entailing its responsibility). Its main tasks are to collect, verify, and analyse information; assess and decide on transfer requests; overview compliance with its decisions; and assure coordination with other state organs. Other competent national authorities often include border control and police forces, while judicial bodies may play a major role in enforcing national legislation and regulating or enforcing the actions of state agencies.

Transfers or Just Exports?

5.35  The national control system is required to regulate the transfer not only of conventional arms covered under Article 2(1) but also of items covered under Articles 3 and 4. In the case of the conventional arms themselves, this is consonant with the provisions of Article 2(1) that define the arms within the scope of the treaty, as governed by Articles 6 and 7. In contrast, the text of Articles 3 and 4 refers only to the duty to establish and maintain a national control system to regulate the export of, respectively, ammunition/munitions and parts and components.

5.36  Article 6 requires each state party not to authorize any transfer of conventional arms covered under Article 2(1) or of the items covered under Articles 3 or 4, if:

  • •  the proposed transfer would violate its obligations under measures, in particular arms embargoes, adopted by the UN Security Council acting under Chapter VII of the UN Charter

  • •  the transfer would violate the state’s obligations under treaties to which it is a party, in particular relating to the transfer of, or illicit trafficking in, conventional arms, or

  • •  if it has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, or certain serious violations of the laws of war.

(p. 175) Thus, Articles 5(5) and 6 are wider in scope than Articles 3 and 4, covering also import, transit, trans-shipment, and brokering. Given the specific reference to the prohibition on transfer (not merely export) in Article 6, and the fact that the object of the treaty is to ‘establish the highest possible common international standards for regulating the international trade in conventional arms’ for the purpose of ‘reducing human suffering’, the provision in paragraph 5 should be understood broadly.33

Paragraph 6

Each State Party shall designate one or more national points of contact to exchange information on matters related to the implementation of this Treaty. Each State Party shall notify the Secretariat, established under Article 18, of its national point(s) of contact and keep the information updated.

National Point(s) of Contact

5.37  To facilitate exchange of information on treaty implementation, each state party is required to designate a national point (or points) of contact and to notify the treaty Secretariat of its decisions. Such a point of contact can be an individual, an organization within a ministry, or another entity.

5.38  National control authorities or their heads34 could be appropriate points of contact because they are at the centre of national control systems. The UNROCA, the 2001 UN Programme of Action on Small Arms (PoA),35 the 2001 Firearms Protocol,36 and the ITI37 already foresee the establishment of national contact points, although their effectiveness is said to vary widely.38 According to UNDP, with respect to the PoA, the representative(s) chosen to be the national contact point(s) should ‘ideally’ fulfil all of the following criteria:

  • •  Have extensive knowledge of the small arms situation within the country

  • •  Fully understand the role, responsibilities and operational workings of all stakeholders (governmental, international organizations, and civil society) within the country

  • •  Have sufficient seniority in the administration to take part in (and preferably lead) decision-making processes and to communicate effectively on policy issues

  • •  Be able to gain and maintain the confidence of all stakeholders

  • •  Have the ability to communicate with all relevant national and international stakeholders

  • •  Be able to represent the state at international SALW-related meetings.39

(p. 176) 5.39  Until the Secretariat is effectively established in Geneva in accordance with Articles 17 and 18, following the decision of the first Conference of States Parties, information should presumably have been sent to the provisional secretariat (Mexico). There is a further obligation on each state party to keep the information on national points of contact updated.

Footnotes:

1  As noted below, though, the sixth principle set out in the ATT’s preambular Principles section refers to the ‘responsibility of all States, in accordance with their respective international obligations, to effectively regulate the international trade in conventional arms … as well as the primary responsibility of all States in establishing and implementing their respective national control systems’.

2  As discussed above in the commentaries on Arts 3 and 4, these articles contain specific obligations to set up and maintain a national control system to regulate the export of, respectively, ammunition/munitions and parts and components within the scope of the ATT.

3  International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (ITI), Art. 2(4).

4  The spirit of the provision was reflected in two paragraphs in the preambular Principles section. The first, contained in the first principle, referred to the inherent right of all states to individual or collective self-defence as recognized in Art. 51 of the UN Charter. The second, contained in the seventh principle, called for ‘respect for the legitimate interests of States to acquire conventional arms to exercise their right to self-defence’.

5  See, above, Commentary on the Principles, MN0.72–0.73.

6  See, below, MN5.15.

7  See, above, MN1.54 et seq.

8  ‘Each State Party shall implement this Treaty in a consistent, objective and non-discriminatory manner, in accordance with the goals and objectives of this Treaty.’

9  S. Casey-Maslen and S. Parker, ‘The Draft Arms Trade Treaty’, Academy Briefing No. 2, Geneva Academy of International Humanitarian Law and Human Rights, October 2012, Geneva, p. 27.

10  The draft, which referred to agreements ‘by’ states parties, could be read as to include any agreement that included a state party, even one made with a state not party. See, below, the commentary on Art. 26(2).

11  ‘Each State Party shall take all appropriate legislative and administrative measures necessary to implement the provisions of this Treaty and shall designate competent national authorities in order to have an effective and transparent national control system regulating the international transfer of conventional arms.’

12  ‘Each State Party shall designate one or more national points of contact to exchange information on matters related to the implementation of this Treaty. A State Party shall notify the secretariat, established under article 12, of its national point(s) of contact and keep the information updated.’

13  ‘5. States Parties involved in an international transfer of conventional arms shall, in a manner consistent with this Treaty, take appropriate measures to prevent diversion to the illicit market or for unauthorized end use.’

‘6. If a diversion is detected, the State or States Parties that made the detection may notify the State or States Parties that could be affected by such diversion, to the extent permitted in their national laws, in particular those States Parties that are involved in the transfer or may be affected, without delay.’

14  MN5.06.

15  Art. 26, 1969 Vienna Convention on the Law of Treaties.

16  The language could also be seen as illustrative of the underlying fear of states from the Global South that the North’s technological advantage in certain area might translate into discriminatory practices.

17  See, above, Commentary on the Principles, MN0.72–0.73.

18  S. Casey-Maslen, G. Giacca, and T. Vestner, ‘The Arms Trade Treaty (2013)’, Academy Briefing No. 3, Geneva Academy of International Humanitarian Law and Human Rights, June 2013, Geneva, p. 27.

19  See, above, Commentary on the Principles, MN0.68–0.70.

20  See Art. 2(2) and the accompanying commentary.

21  Derived from International Small Arms Control Standards (ISACS) 03.20: National Controls over the International Transfer of Small Arms and Light Weapons, Version 1.0. 17 June 2014, p. 5, at: <http://www.smallarmsstandards.org/isacs/0320-en.pdf>.

22  See The Arms Trade Treaty: A Practical Guide to National Implementation, Small Arms Survey, Geneva, 2015.

23  Arguably the authorization assessment requirement implicit in Art. 6 and explicit in Art. 7 necessitate at least framework legislation, both to create such an authority and to apply the treaty criteria for authorization or denial.

24  See The Arms Trade Treaty: A Practical Guide to National Implementation, Small Arms Survey, Geneva, 2016, §4.1.

25  Ibid.

26  Where the darts are expelled by gas rather than explosive. It could also be argued that they are not a ‘lethal’ weapon as required by the ITI definition.

27  See, above, the commentary on Art. 2(1)(h) at MN2.176 et seq.

28  It may be that where states parties are willing for their control lists to be public, the website will be the manner of their dissemination. Alternative arrangements will need to be made to protect the confidentiality of other national control lists.

29  Art. 5(4), President’s Non-Paper of 27 March 2013.

30  See the commentary on Art. 8(1) in MN8.31.

31  Art. 5(3).

32  A semantic distinction may also be drawn between ‘appropriate’ and ‘necessary’ measures to implement the provisions of the treaty, with the latter, contained in paragraph 5, arguably a narrower concept. A measure that is necessary will typically be appropriate, but the contrary is not inevitably true.

33  See, above, the commentary on these provisions.

34  With respect to the 2001 UN Programme of Action on Small Arms, the UN Development Programme (UNDP) has asserted that the national point of contact (NPC) is often the chair of the National Small Arms and Light Weapons Commission. UNDP believes this can be beneficial ‘as it enhances visibility both within the government and at the regional and international level and limits the risks of duplication of work and/or competition between the commission and the NPC.’ The Establishment and Functioning of National Small Arms and Light Weapons Commissions: How to Guide, UNDP, 2008, p. 25, available at: <http://www.poa-iss.org/CASAUpload/Members/Documents/9@UNDP%20SALW%20Commissions.pdf>.

35  Art. II(6).

36  Art. 13(2).

37  S, VI(25).

38  See ‘Implementation in Practice: National Points of Contact in the RECSA Region’, Issue Brief No. 7, Small Arms Survey, June 2014, available at: <http://www.sipri.org/research/disarmament/dualuse/pdf-archive-att/pdfs/small-arms-survey-implementation-in-practice-national-points-of-contact-in-the-recsa-region>.

39  The Establishment and Functioning of National Small Arms and Light Weapons Commissions: How to Guide, p. 25.