Arms Trade Treaty: Regulating the brokers
The global conventional arms trade is highly complex, involving states, companies and individuals across jurisdictions with contrasting laws and regulations. To function it relies on the activities of arms brokers.
Without strong provisions to regulate brokers, the Arms Trade Treaty (ATT) will be ineffective. Unscrupulous brokers will continue to exploit loopholes and facilitate deals contrary to the aims of the proposed ATT.
Therefore ATT must commit States to ensuring that activities of brokers operating under their jurisdiction are consistent with the ATT.
States must introduce compulsory registration of arms brokers and licensing of specific brokering activities, both within their territory and by their nationals abroad. Exporting states must ensure that brokers are appropriately registered and licensed prior to authorising a transfer. Importing states must ensure that all arms transferred to their territory are accompanied by appropriate registration and licence details.
States Parties must commit to sharing information on brokers and their activities, and co-operating with each other in investigations, prosecutions and judicial proceedings.
These provisions are crucial in combatting illicit brokering.
• Setting minimum regulatory standards will help prevent illicit brokering by preventing illicit agents from ‘forum-shopping’.
• Requiring States to control the activities of nationals operating outside their territory will make it much harder for brokers to evade the law. This is not unusual under international or national law. Other treaty regimes involving complex cross-boundary transactions recognise that to be effective, application must extend to nationals outside the territory of a State Party, (for example- the Criminal Law Convention on Corruption 1999). States have shown an increasing willingness to provide for extra-territorial jurisdiction where national legislation addresses problems which transcend national borders (for example, the United Kingdom’s Bribery Act 2010).
Arms Trade Treaty brokering requirements include;
• Broad-based definitions of brokering
• Registration of brokers
• Licensing of brokering activity
• Registration, licensing and enforcement to extend to nationals outside the territory of a State Party
• Verification of brokers’ status by exporting and importing authorities
• Record-keeping and information sharing about registered brokers and denials of applications for registration and licences
• Mutual assistance between States Parties in investigations, prosecutions and judicial proceedings in relation to illicit brokering activity
• States Parties to establish adequate penalties for violation of arms brokering regulations
This blog was written by Stanzie Bell who is currently working with Oxfam GB for the Arms Trade Treaty Legal Response Network during the Arms Trade Treaty negotiations in New York. It was produced with input from lawyers in ATT Legal.
A4ID has been assisting Oxfam GB by sourcing lawyers to provide pro bono legal support to the Arms Trade Treaty Legal Response network during the treaty negotiations.