Legitimising liberal militarism: politics, law and war in the Arms Trade Treaty

Abstract

Post-cold war efforts to knit together human rights and international humanitarian law in pursuit of tougher arms transfer control reached their apogee in the UN Arms Trade Treaty (ATT). In contrast to dominant accounts based on human security norms, I argue that a key effect of the ATT is to legitimise liberal forms of militarism. During negotiations the US and UK governments justified their arms export practices in terms of morality, responsibility and legitimacy. More broadly their arms transfer practices are explained away by reference to national regulatory regimes that exceed the standards set out in the ATT. Arms transfers to Egypt and intra-Western transfers illustrate the way these justifications and regimes serve to shield US–UK weapons transfers and use from scrutiny and accountability. Rather than signalling the victory of human security, the ATT is better understood as facilitating the mobilisation of legitimacy for contemporary liberal forms of war fighting and war preparation.

Keywords:

• Arms trade
• arms transfer control
• norms
• liberal militarism
• human security
• risk

Acknowledgements

I am grateful to my colleagues in the IR Department at the University of Sussex, especially Jan Selby, and to colleagues at SOAS, especially James Eastwood, for comments on previous iterations of this argument at departmental research seminars. Thanks also to Laurence Lustgarten and the anonymous reviewer(s) of this and previous drafts for constructive comments.

Notes

1. Hague, “A Safer Future.”

2. UN Department of Public Information, “Overwhelming Majority of States”; and Control Arms, “States vote Overwhelmingly.”

3. Bolton, “Arms Trade Treaty.”

4. UN General Assembly, “The Arms Trade Treaty.”

5. Bourne, “Controlling the Shadow Trade”; and Mutimer, “‘A Serious Threat to Peace’.”

6. Mack, “The Arms Trade Treaty PrepCom.”

7. Stavrianakis, “Pariahs, Progressives and Sceptics.”

8. McDonald, “Worth the Paper?”

9. Wulf et al., “Small Arms and Light Weapons.” See also Krause, “Transnational Civil Society Activism”; and Garcia, Disarmament Diplomacy for discussion of the campaign.

10. The scope of the treaty covers battle tanks, armoured combat vehicles, large-calibre artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons. Ammunition and parts/components relevant to these weapons types are treated separately but apply the same criteria. There are mild reporting requirements (state parties are to report on their implementation measures within a year of entry into force of the treaty, and to provide a retrospective annual report on imports and exports of equipment covered by the treaty, with the caveat that they can exclude commercially sensitive or national security information; and enforcement is purely at the national level). State Parties are encouraged to cooperate and seek or provide assistance for implementation and the treaty establishes a Secretariat to assist in implementation, which has no enforcement capacity. For criticisms, see, for example, Brück and Holtom, “Will the Arms Trade Treaty be stuck in the Past?”; Control Arms, “Finishing the Job”; Saferworld, “Finishing the Job”; WILPF, “UN Member States”; and Lustgarten, “The Arms Trade Treaty.”

11. Garcia, Disarmament Diplomacy, 37.

12. Bolton et al., “Globalization and the Kalashnikov.”

13. For just a few examples of this literature, see, for example, Price, The Chemical Weapons Taboo; Price, “Reversing the Gun Sights”; Krause “Transnational Civil Society Activism”; Tannenwald, “Stigmatizing the Bomb;” Cameron et al., To Walk Without Fear; and Rutherford, “The Evolving Arms Control Agenda.”

14. Erickson, The Arms Trade Treaty.

15. Cooper, “What’s the Point?”; Cooper and Mutimer, “Arms Control for the 21st Century”; Krause and Latham, “Constructing Non-proliferation and Arms Control”; and Stavrianakis, Taking Aim at the Arms Trade.

16. Rappert et al., “The Roles of Civil Society,” 773.

17. On ATT as arms control, see Ray, “A Human Security Agenda.” As a novel type of ‘humanitarian security regime’, see Garcia, Disarmament Diplomacy. As trade regulation, see Wood, “How to reach Consensus”; and Countryman, “Statement.” For WILPF’s feminist and pacifist position, see Acheson, “Starting Somewhere.” For conservative opposition, see Bromund, “Congress should Continue”; and National Rifle Association Institute for Legislative Action, “Obama Administration Signs.” On the position of sceptical states, see Stavrianakis, “Pariahs, Progressives and Sceptics.”

18. Mack, “The ATT PrepCom.” See also Ray “A Human Security Agenda,” 203.

19. Green et al., “Gender-based Violence.”

20. Krause, “Transnational Civil Society Activism,” 232; and Joseph, “Reflections from the Arms Trade Treaty Negotiations.”

21. Acheson, “Starting Somewhere.”

22. Ibid.

23. Ibid; Saferworld, “The Arms Trade Treaty”; Duncan, “The Arms Trade Treaty”; and Sears, “Controlling Small Arms.”

24. Garcia, Disarmament Diplomacy, 56.

25. Garcia, Disarmament Diplomacy, 14.

26. Garcia, “Humanitarian Security Regimes,” 56.

27. For example, Price, “Moral Norms in World Politics”; Price, “Moral Limit and Possibility”; Florini “The Evolution of International Norms”; and Sikkink, “Transnational Politics.”

28. Price “Moral Limit and Possibility,” 201.

29. Price “Moral Limit and Possibility,” 204.

30. Krebs and Jackson point to the limits of the US constructivist norms literature’s assertion of crass material interests versus sincerely held ideational beliefs, and to the limits of persuasion and internalisation of beliefs as a mechanism for change, arguing, rather, for a model of rhetorical coercion. I share their scepticism as to the explanatory effectiveness of a norms-based argument and emphasis on the relationship between rhetoric, legitimacy and rule but do not go into detail as to the mechanisms of the rhetorical practices around the ATT, as the substantive outcome (legitimation of liberal militarism rather than promotion of human security norms) is my focus. Krebs and Jackson, “Twisting Tongues and Twisting Arms.” For an interesting op-ed by an arms control consultant using language of ‘diplomacy, lobbying and out and out arm-twisting’ and the way ‘rhetoric can often trump fact’ in Washington, while also trying to pitch the ATT as in US interests, see Stohl, “Tell the Truth.”

31. Carpenter, “Vetting the Advocacy Agenda.”

32. Perkins and Neumayer, “The Organized Hypocrisy of Ethical Foreign Policy.”

33. Ibid., 247. See also their discussion of why their findings differ from those of previous econometric work by Blanton, whose results paint a more optimistic picture. See also De Soysa and Midford, “Enter the Dragon!”; and Erickson, “Market Imperative meets Normative Power.”

34. Erickson, "Market imperative meets normative power," 218 (emphasis in original). Under the EU Common Position, member states are legally bound to ‘deny an export licence if there is a clear risk that the military technology or equipment to be exported might be used for internal repression’, in order to ensure ‘respect for human rights in the country of final destination as well as respect by that country of international humanitarian law’. Council of the European Union, Council Common Position 2008/944/CFSP.

35. Hansen and Marsh, “Normative Power and Organized Hypocrisy.”

36. Perkins and Neumayer, “The Organized Hypocrisy of Ethical Foreign Policy”; and Hansen and Marsh, “Normative Power and Organized Hypocrisy,” for example, both mobilise Krasner’s concept of ‘organized hypocrisy’. Krasner, Sovereignty.

37. Hansen’s argument, which seeks to ‘tak[e] ambiguity seriously’, for example, still ultimately theorises ambiguity in terms of a rational model of material interests. Hansen, “Taking Ambiguity Seriously.”

38. Cf. Jochnick and Normand, “The Legitimation of Violence: A Critical Analysis of the Gulf War,” 412 (emphasis in original).

39. Price, “Moral Limit and Possibility,” 203.

40. Ibid., 204.

41. Erickson, Dangerous Trade, 153–154.

42. Ibid., 37.

43. Stavrianakis and Selby, “Militarism and International Relations.”

44. Shaw, Post-military Society, 3.

45. For typologies of forms of militarism, see, for example, Mann, “The Roots and Contradictions”; Shaw, Post-military Society; Shaw, The New Western Way of War; and Sjoberg and Via¸ Gender, War and Militarism.

46. Caverley, Democratic Militarism; Edgerton, “Liberal Militarism”; and Stavrianakis and Selby, “Militarism and International Relations.” Caverley does not specify that democratic militarism is specifically liberal, but seems to mean liberal–democratic militarism, given his assumptions about the form of democracy in play. The category of liberal militarism subsumes democratic militarism, but the reverse is not the case; democratic militarism is not necessarily liberal.

47. Edgerton, “Liberal Militarism”; and Shaw, “Risk-transfer Militarism.”

48. Af Jochnick and Normand, “The Legitimation of Violence: A Critical History of the Laws of War”; and af Jochnick and Normand, “The Legitimation of Violence: A Critical Analysis of the Gulf War.”

49. Smith, “The New Law of War”; and Smith, “Can Human Rights build a Better War?”

50. Owens, Between War and Politics, 74.

51. Garcia, “Humanitarian Security Regimes,” 56.

52. Erickson, The Arms Trade Treaty.

53. Krause, “Transnational Civil Society Activism,” 231.

54. UN General Assembly, “Towards an Arms Trade Treaty” (A/C.1/61/L.55 and A/Res/63/240, respectively).

55. Wood, “How to reach Consensus”; and Abramson and Horner, “Toward a legally binding Arms Trade Treaty.” UK Foreign Minister David Miliband claimed to have sought ‘an active US partner’ on ATT for many years and now has one. Cited in Abramson, “US supports ATT Process.”

56. Stohl, “Putting the Arms Trade Treaty into Context,” 336.

57. Clinton, “US Support for the Arms Trade Treaty.”

58. Erickson, Dangerous Trade, 88.

59. US Department of State, The International Arms Sales Code of Conduct.

60. “US–EU Declaration on Responsibility in Arms Exports.”

61. One of the ironies of the ATT is that the effort to promote responsible arms trading does not rule out undercutting. In the Egypt case, discussed below, for example, during the period that certain US arms transfers were temporarily put on hold, other suppliers such as France (a state party to the ATT) and Russia (a non-signatory) reportedly concluded significant deals. Sharp, Egypt. I am grateful to the reviewer who pointed out this additional source of the ATT and the undercutting issue in relation to Egypt.

62. Hague “Speeches”; and Amnesty International, “UN.”

63. Donaldson, “How the UK can be a Global Champion.” See also Hague et al., “Why this Arms Trade Treaty is Essential”; Wood, “How to reach Consensus”; and Duncan “The Arms Trade Treaty.”

64. Quoted in Kytömäki, The Defence Industry, 21.

65. Wood, “How to reach Consensus”; and Abramson and Horner, “Toward a legally binding Arms Trade Treaty.” The embodiment of this position can be seen in the inclusion of Wood, a former MoD official working on strategic export controls and now Rolls Royce director of export controls, on the UK’s ATT negotiating team.

66. Kytömäki, The Defence Industry; and Wood, “How to reach Consensus.”

67. Duncan, “The Arms Trade Treaty.”

68. Ibid.

69. Hillary Clinton, quoted in Amnesty International, The US should Support; Kerry, “The United States Supports”; and Countryman, “Statement.”

70. US Department of State, “United States signs Arms Trade Treaty”; and Suchan “Why you shouldn’t Expect.”

71. Kerry, “Remarks”; and Mahley, “Statement.”

72. Kausner, “Conventional Arms Transfer Policy.”

73. Suchan “Why you shouldn’t Expect.”

74. Ibid.

75. Spear, “The United States Implements.”

76. Krause, “Leashing the Dogs,” 31 (emphasis in the original).

77. Aradau et al., “Security,” 149.

78. Shaw, “Risk-transfer Militarism,” 349.

79. Robinson, “Promoting Polyarchy.”

80. Amnesty International, Arms Transfers to the Middle East and North Africa.

81. Ibid.

82. Ibid.

83. Ibid.

84. Ibid.

85. Ibid; and Akwei, “Letter to Secretary of State.”

86. Amnesty International, Arms Transfers to the Middle East and North Africa, 68.

87. Akwei, “Letter to Secretary of State.”

88. Amnesty International, Arms Transfers to the Middle East and North Africa.

89. Ibid.

90. Ibid.

91. Arms Trade Treaty Legal Blog, “The President scrubs up pretty Well”; Amnesty International, Arms Transfers to the Middle East and North Africa; and Amnesty International, The US should Support.

92. UN General Assembly, “The Arms Trade Treaty,” Article 7.1(a).

93. Amnesty International, Arms Transfers to the Middle East and North Africa.

94. Amnesty International, The US should Support.

95. Ibid.

96. Shapiro, “Defense Trade Advisory Group Plenary” (emphasis in original).

97. US Department of State, “Elements of an Arms Trade Treaty.”

98. Toner, “US Department of State.”

99. Crowley, “US Department of State.”

100. Bromley and Wezeman, “Policies on Exports.”

101. Pressure for the waiver also came from the ostensible need to provide Egypt with the funds to pay for its arms and defence contracts with US manufacturers (as per the terms of US military aid). Myers, “Despite Rights Concerns.” US military aid is as much about subsidy for US defence companies as it is about ‘strategic partnership’ with Egypt. Marshall, “Why the US won’t cut Military Aid.”

102. The suspension included a delay to F-16 and other major platform deliveries and postponement of military exercises, but counter-terrorism assistance, military training, and the provision of spare parts continued. US Department of State, “Background Briefing.”

103. The UK government was one of those pushing for the stronger formulation of ‘significant’ rather than ‘overriding’ risk. Lustgarten, “The Arms Trade Treaty.”

104. Saferworld, “UK Arms Export Review.”

105. Hague, Ministerial Statement, July 18, 2011, quoted in Committees on Arms Export Controls, Scrutiny of Arms Exports 2012.

106. Hague, Ministerial Statement, 13 October 2011, quoted in Committees on Arms Export Controls, Scrutiny of Arms Exports.

107. Ibid.

108. Secretaries of State, Strategic Export Controls, 60.

109. Gilby, “Labour, Arms and Indonesia.”

110. Committees on Arms Export Controls, Scrutiny of Arms Exports, 6. The precise mechanisms of the suspension mechanism, and the actual effect in terms of restricting equipment being transferred, remains unclear.

111. Secretaries of State, Strategic Export Controls, 81.

112. Ibid.

113. In addition, dual-use goods and technologies, including surveillance equipment that was important in the repression of protest in Egypt and elsewhere during the Arab Spring, are excluded from the scope of the treaty. Lustgarten “The Arms Trade Treaty.”

114. Donaldson, “How the UK can be a Global Champion.”

115. Amnesty International, “UN.”

116. Tauwhere, in Committees on Arms Export Controls, “Minutes of Evidence.”

117. Erickson, “Saint or Sinner?”; and Erickson, Dangerous Trade.

118. Wezeman and Wezeman, “Trends in International Arms Transfers.”

119. Hsiao-Rei Hicks et al., “Violent Deaths of Iraqi Civilians.”

120. Amnesty International, ‘Will I be Next?’; Human Rights Watch, Between a Drone and al-Qaeda; and Stanford Law School and NYU School of Law, Living Under Drones.

121. Smith, “‘Can Human Rights?,” 25.

122. Cabinet Office, United Kingdom/United States; and US Department of State, Implementing Arrangement.

123. West of England Aerospace Forum, “US–UK Defence Trade Cooperation Treaty.”

124. Department for Business, Innovation and Skills, “Open General Export Licence.”

125. Amnesty International, Blood at the Crossroads. Human rights violations committed by coalition forces are pointed out, but not used as an argument for an ATT. The ‘lessons from Iraq’ are about misuse by Iraqi forces and there is no mention of intra-Western transfers and violations in the course of the war, which are part of making a war.

126. Cooper, “Humanitarian Arms Control,” 138–139.

127. Shaw, The New Western Way of War.

128. Shaw, “Risk-transfer Militarism,” 344, 349.

129. Smith, “Can Human Rights?,” 31.

130. Owens “Accidents don’t just Happen,” 596 (emphasis in original).

131. Owens “Accidents don’t just Happen,” 599 (emphasis in original).

132. UN General Assembly, “The Arms Trade Treaty.”

133. ICRC, Arms Transfer Decisions.

134. Smith, “Can Human Rights?,” 25, 28.

135. Smith, “The New Law of War,” 368.

136. Thanks to the reviewer who encouraged me to push this line of argument further regarding the balancing act of Article 7.

137. An exception here is the Reaching Critical Will project of the WILPF, designed to facilitate NGO engagement in UN disarmament processes. Its interventions in the debates around the ATT were unusual in their more critical stance towards the arms trade.

138. Shaw, “Risk-transfer Militarism,” 358.

139. Mann, The Sources of Social Power, 273–275.

140. Leander, “What do Codes of Conduct Do?”

141. Smith, “The New Law of War,” 362.

142. Stavrianakis, “Progressives, Pariahs and Sceptics.”

143. Cooper, “What’s the Point?,” 131.

144. Stavrianakis, Taking Aim at the Arms Trade.

145. Leander, “What do Codes of Conduct Do?” 114.

146. Shaw, “Risk-transfer Militarism,” 357.

147. Shaw, “Twenty-first Century Militarism,” 28.

148. Smith, “Can Human Rights?,” 25, 29.

149. Af Jochnick and Normand, “The Legitimation of Violence: A Critical Analysis of the Gulf War,” 414.

150. Price, “Moral Limit and Possibility in World Politics,” 210.

151. Ibid., 206.