by Heinz Gaertner

Multilateralism in international institutions and regimes can facilitate cooperation by providing opportunities for negotiations, reducing uncertainty about the policies of other actors, and affecting leaders' expectations about the future. It therefore can both promote cooperation and constrain bargaining strategies, facilitating the drafting of agreements.

 

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There is, however, another role of international institutions and regimes: Within the framework of multilateralism, they can serve as tools to constrain cooperation, protecting or promoting the interests of individual parties. National delegations within particular institutions and enforcement regimes, while theoretically supporting general principles and goals, also seek to promote and protect the interests of their own states. The Wassenaar Arrangement and Conventional Arms Exports (WA) exemplifies this complex relationship between compliance and non-cooperation.

The WA is a multilateral regime designed to control the export of conventional arms and dual-use goods and technologies, contributing to regional and international security and stability and preventing the destabilizing accumulation of such items. It claims to promote transparency and greater responsibility on the part of suppliers when making decisions on the sale and transfer of such weapons and technologies. The WA has developed "Elements for Objective Analysis" concerning "Potentially Destabilizing Accumulations of Conventional Weapons" (1) based on the following categories: Assessment of the Motivation of the State, the Regional Balance of Forces and General Situation in the Region, the Political/Economic Standing/Status of the State, Operational Capability (Equipment, Manpower), Acquisition of Military Technology, and Other Factors. The categories include elements of conflict analysis, non-proliferation, anti-terrorism, confidence and security building, and compliance with international standards for human rights. The document dates from 1998, but contains important elements of what has developed into the current concept of "human security." The agreement recognizes that these weapons, if unrestrained, will have many unacceptable human consequences (2).

The WA has developed impressive lists of munitions, dual-use goods, and technologies that require monitoring. The lists are complicated, and technology and software emerge and develop so fast that it can be hard to keep track of the multitude of technologies and their rapid evolution; yet the WA expects private commercial companies to fully comply with its long export control lists (3). Many of the WA's activities concentrate on what to control, not only on the why and the how. The issues are: review procedures for what to include on the list of covered items, control of non-listed items, end-use assurances, the principle of "extreme vigilance," emerging technologies (the companies' desire to bring to international markets state-of-the-art products versus the need for export controls), management of intangible transfers of technology (ITT), and implementing internal control programs. General issues also address how to implement controls: how to accommodate regular trade while preventing the destabilizing accumulations of arms; export controls of Small Arms and Light Weapons (SALW) or Man Portable Air Defense Systems (MANPADS); and control of arms brokering.

The WA recognizes that certain conventional armaments can have a disproportionately destabilizing impact. SALW play a key role in perpetrating abuses of international human rights and humanitarian law, and MANPADS can easily be used by terrorists to shoot down a civilian airliner. The WA stresses that: "these items can exacerbate regional conflicts and are among the weapons of choice for terrorists." (4)  Thus, the WA can claim that export controls are a useful means of combating terrorism. (5)

The WA is not a traditional arms control and disarmament agreement, as it is not legally binding on the state parties. Enforcement relies on cooperation and voluntary compliance, with governments and industries representing the two most important actors in the agreement's dynamics. The WA gives direct guidance to these two main constituencies to ensure cooperation and compliance with the Agreement's extensive provisions.

The tantalizing question surrounding the operation of the WA is whether those involved are, in fact, honestly interested in complying with the Agreement's guidelines and committed to implementing them. The goods and technologies covered by the WA blur the distinction between military and civilian. The supply chain that the WA seeks to monitor and regulate consists almost exclusively of non-state actors: producers - suppliers - brokers - consumers - users - victims. Are all the items on the WA's lists to be considered sensitive and requiring special treatment? If so, then how? Do non-state actors (i.e. industries and companies regulated by the WA) feel a responsibility to control their products and services, and limit the weapon and arms technology exports that are their profit center?

In many situations covered by the WA, the involvement of intermediate distributors means that the initial manufacturer or sellers may not know the identity of the end-user of their products. And the initial supplier generally makes little or no effort to obtain information about the final consumer. End-consumers and users may be governments, military establishments, defense industries, or private commercial entities. Typically, neither the companies that manufacture the products nor any intermediate parties acting on behalf of the sellers require any confirmation of whether the exported goods reach their intended destination. The sale of large quantities of weapons and other technologies is seen as the true measure of success and profit. Little attention is devoted to the possibility that large orders for particular systems or technologies, especially to non-traditional buyers, might require further investigation to ensure that goods are not diverted to prohibited actors such as failing states, states under UN sanctions, organized crime, or terrorist groups.

While many industrialized states have national export regulations, non-state actors rarely require additional checks beyond those mandated under local laws. When making decisions about the export of sensitive items, therefore, most companies (with a few laudable exceptions) ignore the potentially destabilizing effects of the sale of a particular weapons system or dual-use technology on the country whose government or private industry procures these goods or services. This mindset is widespread, despite the well-known fact that the export of conventional weapons can contribute to increased tension or instability in a region and exacerbate an existing conflict. Beyond the clear-cut examples of exporting weapons, it is questionable whether possible violations of human rights norms ever seriously influence decisions to export goods or technologies that may be used to suppress dissent or protest.

Although the WA export control list could provide guidelines for future export decisions and export conduct for both state and non-state actors, it has little impact on specific export decisions. These remain largely driven by profit, growth, and investment opportunities. The main private actors involved in the WA - the exporting companies - remain vehemently opposed to the strict enforcement of effective export control measures. As a result of their aggressive and effective lobbying of the governments responsible for administering the controls, states have largely acquiesced to their more-or-less open flouting of many of the tortuous regulations.

Delegations in the WA's assemblies and committees reflect the cumulative interests of the countries they represent. Their overall image suggests that they are largely uninterested in the forceful implementation of WA best practices, a view that may reflect the reality of the present international arena and the way states and industry operate within it. Such a viewpoint is not entirely correct, however. While member governments currently remain willing to support general WA guidelines that address the concerns of all countries, they consistently and simultaneously oppose specific controls that might negatively impact their own export policies and decisions. In this situation, member states express support for the objectives of the WA but not for any concrete enforcement of its provisions. While WA governments do not want the destabilizing effects of an accumulation of conventional arms, they commonly do not care about the contribution of their own industries to this process. Industries, for their part, want to sell equipment, technology, and software that can be used for both civilian and military purposes, while preventing buyers from developing the manufacturing capabilities, software, and technological expertise that might enable them to become competitors - either in the commercial market or the even more lucrative military sphere. The question remains, therefore, of whether the WA's generalized principles can have an impact on the individual states who are parties, albeit ambivalent ones. The reaction is circular, as states act to prevent WA's impact from becoming too strong and adversely affecting their individual interests. In the worst cases, the circle becomes a downward spiral that negates any effective controls. Other cases simply remain a loop of self-negating actions.

The result is that the delegations to the WA express rhetorical support for the goals of the agreement, but do not wish them to become binding (at least on themselves). They express solidarity with other international control regimes that the WA underpins, and for those institutions that deal with the same or similar issues, while avoiding any commitments or ties beyond their control and influence. Thus, despite their political and rhetorical support for the WA, they try to prevent stronger commitments being written into the Agreement, e.g. a more binding "code of conduct" for conventional arms exports that would stipulate that any country wishing to purchase arms must meet certain criteria, including the promotion of democracy, protection of human rights, and transparency in its military budget and spending. Such a code of conduct would also prohibit arms sales to nations supporting terrorism and to states engaging in aggression against other nations or peoples. (6) The UK, for example, promoted the application of the EU's Code of Conduct outside the current EU membership, (7) but does not support a code of conduct for WA. Neither do the US, France, Russia, and other major powers.

The diplomatic delegations in multilateral have the difficult task of identifying the cumulative interests of the countries they represent. They have to support and reject cooperation with states and other export control institutions, often simultaneously. The US, for example, wants to protect US national security interests and pursue and support US foreign policy interests, while promoting regional stability and peaceful conflict resolution. (8) The result is that decisions, agendas, or agreements are blocked or kept at a general level that cannot damage individual national interests. The WA recognizes the connections between arms exports and international human rights and humanitarian law. But how much (if, indeed, at all) do multinational corporations want to curtail business opportunities by paying attention to human rights standards and behavior of potential customers? Clearly, respect for human rights on the part of arms-exporting industries cannot be guaranteed, and individual states remain unable or unwilling to enforce standards in their own commercial enterprises. The WA does not provide binding rules, but an à la carte approach to corporate responsibility on the part of arms exporters seems likely to fail through an obvious lack of credibility. If a responsible business community in the field of arms exports is going to evolve, a core set of binding rules must be consistently enforced by the companies and their national governments. Only under these conditions will governments and the armaments industry be able to credibly refute allegations that corporate arms export responsibility initiatives are merely window dressing.


The author, Heinz Gaertner, is professor at the Austrian Institute for International Affairs (ÖIIP) in Vienna.
 

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Footnotes:
(1) Approved by the Wassennaar Arrangement (WA) Plenary on 3 December 1998.

(2) Edward J. Laurance, Hendrik Wagenmakers, and Herbert Wulf, "Managing the Global Problems Created by the Conventional Arms Trade: An Assessment of the United National Register of Conventional Arms," Global Governance 11 (2005), 225-246, here 241-242.

(3) The caveat on all of these lists is that defense systems and technologies are becoming increasingly complex—composed of exotic materials, diodes, resistors, parts, components, relays, subsystems, systems, assemblies, and software. It is increasingly difficult to identify components or functions that may be concealed. Miniaturization and increasingly complex systems mean that the possibility of hostile use of such components is just beginning.   Jack Spenser, ed., "The Military Industrial Base in an Age of Globalization, Guiding Principles and Recommendations for Congress" (Washington, DC: The Heritage Foundation, 2005), 27.

(4) Public Statement, 2003 Plenary of The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Vienna, 12 December 2003.

(5) The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Fact Sheet, produced for the Wassenaar Arrangement with the assistance of the United Kingdom, 2004.

(6) Defined in a Statement by Nobel Peace Laureates, Public Presentation of the International Code of Conduct on Arms Transfers, New York, NY, 29 May 1997.

(7) Memorandum from the Foreign and Commonwealth Office, House of Commons, Defence, Foreign Affairs, International Development and Trade and Industry Committees: Strategic Export Controls, HMG's Annual Report for 2003, Licensing Policy and Parliamentary Scrutiny, Evidence, Appendix 3, (London: The Stationery Office Limited, 2005), Ev 37.

(8) Presentation on "Extraterritorial Application of U.S. Export Laws: Relevant Compliance Issues Related to the Conventional Arms Transfer Policy from a Legal and Industry Perspective," Wassenaar Arrangement: Outreach to Industry Seminar, Vienna, 3 October 2005

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