THE CASE OF SMALL ARMS

Dans le document International Trade Law, United Nations Law, and Collective Security Issues (Page 24-29)

Three international instruments cover small arms and light weapons within the framework of the UN: the Programme of Action that was adopted in july 2001;" the ProtocolAgai nst the IllicitManufaeturing ofand Trafficking in Firearms, Their Parts and Components, and Ammunition," which entered into force on 3 july 2005; and the International Instrument to Enable States to Identify and Trace, in a Time\y and Reliable Manner, lllieit Small Arms, and Light Weapons, which was adopted by the General Assembly in December 2005.'° States participating in the 2001 Conference on the Illicit Trade ofSmall Arms and Light Weapons in Ali its Aspects adopted a Programme of Action 'to put in place, where they do not exist, adequate laws, regula-tions, and administrative procedures to exercise effective control over the produc-tion of sm ail arms and light weapons within their areas of jurisdiction and over the export, import, transit, or retransfer of such weapons'." Restrictions imposed by

., Seethe letter and annexed documentsconcerning theCouncilofMinistersofthe Iraqi Republk, which adopted the decision to creale the Committee of Financial Experts, Republic of Iraq, General Secretariat of the CauDeil ofMinisters, 22 October 2006; see also Lettee from the UN Representative ofIraq to the United Nations to the Chairman of the IAMB, 31 Oelober 2006, and Statement by the International Advisoryand Monitoring Board on the Development Fund for Iraq, 6 Noventber 2006, aH those documents are available al < http://www-iamb.info>(lastvisited25JanuarY2008).

aa Programme of Action to Prevent, Combat and Eradicate the lllicit Trade in Sma" Arms and Ligllt Weapons inAllltsAspects, Report of the United Nations Conference on the IIlicit Trade in SmallArms and Light Weapons in Alllts Aspects. New York, 9-20 July 2001, UN DocA/CONF.192115·

89 Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunitjon. supplementing the United Nations Convention against Transnational Organized Crime, General Assembly, Fifty-fifth session, Resolution 551255 (31 May 2001).

90 InternaOonal/nstrument to EnaMe States to ldentify and Trace, in a Timelyand Reliable Manner, llIidt Small Arms and Light Weapons, 8 December 2005.

91 Programme of Action, above fn 88, at para Il.2.

718 LAURENCE BOISSON DE CHAZOURNES AND THÉO BOUTRUCHE

a State on the illicit trade of these weapons are one of the means for achieving the objectives of the various UN instruments on illicit trade of small arms.

In arder ta justify these measures with regard ta WTO law, Article XXI (b)(ii) GATT '994 specifically allows a WTO Member ta take action 'it considers nec-essary for the protection of its essential security interests relating ta the traffic in arms, ammunition, and implements of war'. Measures adopted ta implement the UN Programme of Action that would otherwise contravene WTO obligations on the elimination of quantitative restrictions can be justified under this provision.

Article XXI (c) might also be relied upon, in as much as the UN Programme of Action recalls the threat ta the peace that illicit trade of arms represents. Adopting measures ta limit arms trade would then be understood as an action taken 'in pursu-ance of[a States] obligations under the United Nations Charter for the maintenance of international peace and security'. Such reading may, however, be considered tao wide given the scope and nature of the 'obligations' at stake.

A WTO Membercould also invokeArticleXXI (b)(ii) ta restrictarms exports, even ifperfectly legal, ta another WTO Member ifthere are reasonable grounds to believe that those weapons will be used against the exporting Member's territorial integrity or nation ais either by the importing Member or even by non-State actors supported by the importing Member. In such a case, the notion of'essential security interests:

as contained in Article XX1, could be read in a wide and preventive way given the increasing importance of security considerations for Members'" For example, the struggle against terrorist threats could lead to new restrictive measures.

The Programme of Action, which is notlegally binding, callsfor the developmentof new norms at the internationallevel ta strengthen the effort ta combat illicit trade."

In that respect, the interaction between WTO law and other treaties and instruments in the field of arms trade could raise sorne very interesting questions. MutuaI sup-portiveness between arms trade conventions and instruments and WTO principles and rules should be sought. Given the importance of ensuring cooperation and com-pliance by ail States so to combat illicit trade of small arms, one may also envisage the resort to economic sanctions as a means to force a State ta respect its commitments.

Although the debate over countermeasures is dealt with elsewhere in the Handbook," it is helpful ta point out here that the Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components, and Ammunition is sHent on reactions to non-compliance. The question is then ta what extent a State party can adopt economic measures when another State does

n For a discussion of a wider definition of security interests concerning arms trade. see G Bastid Burdeau. 'Le commerce des armes: de la sécurité à la défense de l'éthique et des droits de l'homme' 2007

Journal du droit international134(l) 413, at 418. In the sa me vein, on a similar issue of interpretation regarding whetber or not a WTO Member imposing import restrictions for human rights considera-tions may justify its acconsidera-tions br invoking exceptions such as those for <security', see G Marceau, <WTO Dispute Settlementand Human Rights' 2002 European Journal o!International Law13(4) 753. at 789.

U Programme of Actjon, above fn 88, at para 22 (a).

!H See chapter 15 ofthis Handbook.

INTERNATIONAL TRADE LAW AND ECONOMIe SANCTIONS 719

not meet its obligations under this Protocol. The issue appears in slightly different terms when one looks at the recent Economic Community of West African States (ECOWAS) Convention on Small Arms and Light Weapons, Their Ammunition, and Other Related Materials that was signed by Member States during their 14 June 2006 Summit in Abuja. Article 27(2) of the Convention provides explicitly for the possibility of adopting collectively authorized sanctions." Under that provision, the competent organ could decide upon the adoption of sanctions of an economic nature that contradict WTO rules and that could be based on Article XXI (b)(ii).

The same issue may arise in the context of future negotiations on a comprehensive international treaty establishing common international standards for the import, export, and transfer of small arms."

v. CONCLUSIONS: THE NEED FOR A NEW ApPROACH?

The UN is increasingly engaging in activities of an economic nature in the frame-work of its collective security mandate. There is therefore a need to think about the overall internationallegal framework for these activities in a more coherent manner.

This approach should start with the recognition of the necessity to address the eco-nomie, as well as humanitarian, effects of sanctions.

Above ail, while the yielding ofboth Article 103 UN Charter and Article XXI (c) GATT 1994 to the interests ofpeace and securityis partly justified, it does not provide satisfying answers when it comes to the new economic role played by the UN.1t is the authors' view that these provisions do not exclude taking into account WTO law and principles of international trade law within the context of collective security activities of an economic nature. An approach that takes these principles into account would improve the long term efficiency of UN action and would advance the goal of achiev-ing sustainable peace. It would provide a coherent framework to address economic challenges arising in post-conflict situations. If economic recovery is to be a pillar of peace, UN involvement needs to be based on legal principles to secure the pro~er func-tioning of post-conflict economies. It is critical in order to ensure that post-conflict

95 Article 27, at para 2 reads as follows: 'If the ECOWAS Mediation and Security Council considers that there is a breach of the obligations underthis convention, it shall decide on the appropriate measures ta be taken such as sanctions, inquiry, study or refer the matter to the ECOWAS Court of Justice.'

96 See Report of the United Nations Conference ta Review Progress Made in the Implementation of the Programme of Action ta Prevent, Combat and Eradicate the Illidt Trade in Small Arms and Light Weapons in AlI Its Aspects the Programme of Action, UN Doc. A/CONF.19212006/RC/9 (12 July 2006), at para 30; UN Press Re1ease, 24 November 2006, DC/3053, at < http://www.un.org//News/Press/

docsho06/dc3053.doc.htm> (last visited 25 January 2008).

720 LAURENCE BOISSON DE CHAZOURNES AND THÉO BOUTRUCHE

transition and UN disengagement do not destabilize the economy, as was identified in the Report of the Panel on UN Peace Keeping Operations." This being said, care-fuI attention should be paid to the specificities of each situation. Depending on the scale and the nature of the conflict as weil as the local context, economic reconstruc-tion may cali for flexible and tailored solureconstruc-tions. The country-specifie method at the heart of the Peacebuilding Commission's work stems fromthis logic"

The increasing recognition of a more coordinated approach would help to go beyond the current logic of deference of WTO law towards UN law and encour-age greater complementarity. This new approach is also relevant at the institutional leve! in terms of sharing of tasks and responsibilities. With the UN being increas-ingly involved in economic matters, there is a critieal issue of coordination regard-ing the respective powers and competences of each organization involved. The existing institutional cooperation scheme between the WTO and the UN is gov-erned by the Arrangements for Effective Cooperation with other Intergovernmental Organizations - Relations Between the WTO and the UN signed on '5 November 1995. The Chief Executive Board is composed of executive heads from various UN bodies, the WTO, and Bretton Woods institutions and meets twice a year under the chairmanship of the UN SG. It seeks to promote coherence bath within the UN system and outside ofit and serves as the main instrument to coordinate actions and policies. Such a forum could be used to further explore new approaches for the UN to take into account international economie law principles. On the other han d, the WTO as an institution should be more proactive in the promotion ofinternational trade law principles and rules as a means to contribute to the stabilization of socie-ties that have gone through major conflicts.

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