Legal Framework

International Arms Export Control Laws

Arms Trade Treaty

The Arms Trade Treaty (ATT) seeks to establish common standards for the international trade of conventional weapons. It does not restrict the types or quantities of arms that states can possess, import or export, but establishes standards that must be met before an arms transfer is authorised. These standards are broadly based on the way that the arms might be expected to be used after they are exported, based on available evidence and the prevailing circumstances. For the purposes of the cases documented on this site, the most relevant ATT provisions are Articles 6, 7 and 11.

Article 6

Article 6 of the ATT automatically prohibits the transfer of arms in specific circumstances. Namely, States Parties are prohibited from authorising the transfer of arms where:

1. The transfer would violate the state’s obligations under measures adopted by the United Nations Security Council acting under Chapter VII of the Charter of the United Nations, in particular arms embargoes.
2. The transfer would violate the state’s relevant international obligations under international agreements to which it is a party.
3. The state has knowledge at the time of authorisation that the arms or items would be used in the commission of genocide, crimes against humanity,
   grave breaches of the Geneva Conventions of 1949,

   Grave breaches are a set of particularly serious violations of IHL that are specifically identified by the Geneva Conventions and Additional Protocol I and must be prosecuted by states. Together with other serious violations of IHL, grave breaches constitute war crimes.

   attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.

Article 7

If the export is not prohibited by Article 6, the ATT also requires states to carry out a risk assessment that takes into account the risk of negative consequences of the arms export. In particular, Article 7 requires States Parties to assess the potential that the exported arms:

1. Would contribute to or undermine peace and security, and/or
2. Could be used to:

• • commit or facilitate a serious violation of
    international humanitarian law (IHL)

    International Humanitarian Law (IHL) is the legal framework that governs activities during armed conflict.

    ,

  • commit or facilitate a serious violation of
    international human rights law (IHRL)

    Several rights are usually placed at risk by the use of exported arms. The most prominent are the right to life and the right to freedom from torture and cruel, inhuman or degrading treatment or punishment.

    ,

  • commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting state is a party;
  • or commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organised crime to which the exporting state is a party.

If, having considered all available measures to mitigate these risks, there still remains an ‘overriding risk’ of any of the above ‘negative consequences’, the state must not authorise the export.

Under the ATT Article 7 on risk assessment, which is to be undertaken on a case-by-case basis, States Parties are required to assess the likelihood that a weapon could be used in the stated violations. The notion of overriding risk is not settled, and its definition is discussed in some of the cases documented by this initiative. The addition of facilitate encompasses instances beyond the direct use of arms in the commission of a violation of international law and can also refer to instances where the arms are used to establish certain conditions in which a violation is committed.

Article 11

In addition to scrutinising the risks associated with the export of arms, the ATT also requires states to consider whether the arms or military equipment to be exported could be diverted to either an unauthorised end-user or for an unauthorised end use.

Diversion is not specifically defined in the ATT, but can encompass situations where arms are transferred to a variety of actors, including third states, foreign entities, or non-state actors, without the consent of the exporting state. In addition to obliging importing and exporting states to adopt mitigation measures to prevent the risk of diversion, exporting states are also expected to consider the risk of diversion during export assessments and deny a transfer on this basis where appropriate. 

ATT Article 11 states that:

1. Each State Party involved in the transfer of conventional arms covered under Article 2(1) shall take measures to prevent their diversion.
2. The exporting State Party shall seek to prevent the diversion of the transfer of conventional arms covered under Article 2(1) through its national control system, established in accordance with Article 5(2), by assessing the risk of diversion of the export and considering the establishment of mitigation measures such as confidence building measures or jointly developed and agreed programmes by the exporting and importing States. Other prevention measures may include, where appropriate: examining parties involved in the export, requiring additional documentation, certificates, assurances, not authorising the export or other appropriate measures.

Additional Resources:

See a brief overview in the report “Domestic Accountability for International Arms Transfers: Law, Policy and Practice” published by Saferworld, the ICJ and GLAN as part of the ATT Expert Group briefing series.

For a comprehensive overview of the meaning and scope of the terms of the ATT under international law, see the Academy Briefing No. 3 by the Geneva Academy.

For an overview of the background of the ATT, its object and purpose and its main requirements from the ICRC’s humanitarian perspective see the report on “Understanding the Arms Trade Treaty from a Humanitarian Perspective”.

EU Common Position

In the European Union (EU), the EU Common Position provides a legally binding set of criteria that seeks to promote the convergence of the arms export policies of EU member states. Directive 2022/C 100/03 also establishes the EU Common Military List, a binding list of goods that require a licence to be exported, and specifies the types of licences that EU Member States must use in national systems.

The Common Position is legally binding on Member States and requires them to uphold and align their domestic law and policy with its principles. The principles enshrined in the Common Position are of a similar – though not identical – nature to the ATT and function as a complementary set of legal obligations for EU Member States, all of which are States Parties to the ATT. The language of the Common Position does differ slightly from the ATT in that there must be a clear risk that the military technology or equipment to be exported might be used in the specified acts, such as the commission of violations of international law under Criterion 2.

The EU User’s Guide is a supplementary instrument that provides guidance on how to interpret and implement the criteria in the Common Position. However, unlike the Common Position, this guide is not legally-binding, meaning that states are able to interpret these terms more broadly through their national systems. The varying ways that the criteria of the Common Position are implemented in practice have been the subject of discussion in the arms litigation documented by this initiative.

Case-by-case Assessment

Notably, with respect to Criterion 2, the User’s Guide considers that the exporting state should conduct a case-by-case assessment that takes into account the recipient’s past and present record of respect for international law, its formal commitments, and its capacity to ensure that the transferred arms and military equipment can be used in a manner consistent with its international obligations. Notably, the User’s Guide also states that isolated incidents of violations of international humanitarian law may not by themselves be a basis for denying an arms transfer. This notion of isolated incidents has been wrongfully invoked by some governments, notably the UK, to justify licensing decisions to recipients with extensive track records of committing serious violations of international law claiming that these do not amount to a pattern of violations.

Additional Resources:

For a comprehensive overview of national implementation and interpretation of EU rules on arms exports, see the report “Towards Europeanized arms export controls?” by the Flemish Peace Institute.

International Law on Wrongful Assistance

In addition to the ATT, and EU Common Position for EU Member States, states are also bound by the international law prohibitions on wrongful assistance. This regime is broader than the ATT and is intended to respond to and remedy state complicity in wrongful acts by prohibiting assistance and aid that contributes to serious violations of international law by another actor. It includes: 

1. The customary rules of general international law on state responsibility. The Articles on the Responsibility of States for Internationally Wrongful Acts define several forms of wrongful assistance, namely aiding and assisting (Article 16) and aggravated responsibility of all third states (Articles 40-41); and 
2. Specialised bodies of law such as international human rights law and international humanitarian law. These define the principal violations that occur at the hands of the recipient states of arms transfers considered by this initiative. They also stipulate the ways that third states must act to ensure that their own actions do not give effect to violations by others and do not harmfully impact the conditions and causes of such violations. These are set out in the Human Rights Committee’s General Comment 36 on the right to life, and in Common Article 1 to the Geneva Conventions.

However, these fundamental international norms have in practice only indirectly informed decision-making on licensing as well as their judicial review. The ATT regime is considered a specialist complicity regime, which is therefore presumed to align with and reinforce these rules.

Common Article 1 of the Geneva Conventions: The obligation to ‘respect and ensure respect’ for IHL

Article 1 common to the Four Geneva Conventions of 1949 (‘Common Article 1’), also known as the obligation to respect and ensure respect for IHL, is explicitly referenced in the ATT. It has both positive and negative components: requiring states to both respect IHL in their own activities and in certain cases to also ensure its respect by other states. In relation to arms transfers, all states (including those not party to an armed conflict) are, according to the ICRC, required to take measures to refrain from transferring weapons if there is an expectation, based on facts or knowledge of past patterns, that such weapons would be used to violate the [Geneva] Conventions.

Additional Resources:

For further analysis of the multi-layered legal framework governing the arms trade, see the legal guide for investigators on “post-sale services as unlawful arms exports”.

For analysis on how this legal framework applies to arms transfers in the context of Yemen, see the joint expert legal ” Opinion on the Legality of Arms Transfers to Saudi Arabia, the United Arab Emirates and other members of the coalition militarily involved in Yemen”.

Rome Statute

The Rome Statute is the treaty that established the International Criminal Court (ICC). Four core crimes – genocide, crimes against humanity, war crimes, and the crime of aggression – fall within the jurisdiction of the Court. It is the only permanent international court that prosecutes individuals accused of these crimes, rather than states or groups. The ICC can investigate these crimes in situations where a State Party is unable or unwilling to do so themselves. It has complementary jurisdiction to domestic courts. The ICC can investigate crimes if they are committed in the territory of a State Party, if they are committed by a national of the State Party, or if the jurisdiction is authorised by the United Nations Security Council.

Additional Resources:

For further information on how the International Criminal Court operates, see the publication on “Understanding the International Criminal Court”.

European Convention on Human Rights

The European Convention on Human Rights (ECHR) protects human rights and political freedoms in Europe. The convention established the European Court of Human Rights (ECtHR). Individuals can bring complaints of human rights violations to the court once all possibilities of appeal have been exhausted in the member state concerned. Any person who feels their rights have been violated under the convention by a State Party can take a case to the Court. Judgements finding violations are binding on the states concerned and they are obliged to execute them.

Additional Resources:

For further information on the ECHR, see Amnesty Internationa’s post on “What is the ECHR?”

Business and Human Rights

Companies, including those involved in the supply of military goods and services such as arms manufacturers, also have certain responsibilities under human rights law. In particular, under the UN Guiding Principles on Business and Human Rights, all companies have a responsibility to respect human rights. This includes an obligation to undertake due diligence processes in order to identify, prevent, mitigate and account for how they address their impacts on human rights (Principle 17) and ultimately to avoid causing or contributing to human rights abuses.

The UN Working Group on Business and Human Rights also recently published an information note on “Responsible Business Conduct in the Arms Sector”, which provides further specific guidance to the defence sector on how to ensure their business practice is in line with these Guiding Principles.

Additional Resources:

For a detailed overview of the key components of a human rights due diligence policy that defence exporters should be implementing, see the guidance on “Defense Industry Human Rights Due Diligence Guidance” published by the American Bar Association.

For analysis of how major arms companies are failing to undertake adequate human rights due diligence, see the report on “outsourcing responsibility” by Amnesty International.

For analysis of how business and human rights can serve to overcome difficulties of challenging arms exports in domestic and international courts, see FES’s study on “Arms Trade and Corporate Responsibility”.

For analysis on the importance of implementing human rights due diligence standards to prevent arms sales that might facilitate human rights abuses, see the blog post on “Weapons Distribution and Human Rights” on Ultra Vires.

Limits and Shortcomings

Although this legal framework is intended to prevent the export of arms to situations of armed conflict and insecurity, various limitations in current systems often render it difficult to hold national governments to account for arms export decisions that fail to meet these standards.

Varying interpretations in national systems

ATT States Parties

Under the ATT, States Parties are required to regulate their arms exports in accordance with its provisions, including Articles 6 and 7. In particular, under Article 5(2) they are obliged to establish and maintain a national control system, including a national control list, in order to implement the provisions of [the] Treaty. In practice, while this entails that national systems must be adapted to include the necessary legislative, regulatory and administrative measures to meet a state’s ATT obligations, it is up to individual state authorities to implement these standards in their national system with a certain margin of appreciation and to thereby create the national framework within which legality will be assessed. 

EU Member States

Similarly, in the EU context, EU Member States are bound by both the ATT and the Common Position and must adapt their national export control systems to meet their obligations under these two instruments. EU Member States are bound by the terms of the Common Position and are legally obliged to align their national law and procedure to ensure that arms exports are assessed against the above-mentioned eight criteria. While there is a  ‘national competence’ to determine the way in which the terms of the Common Position are incorporated in national legislation and how they are interpreted in practice, they should conform to and promote EU standards.

Although the international legal framework is intended to shape national arms export systems and practice, decision-making on licence applications for the export of arms and other controlled goods falls exclusively within the national competence of states. In particular, the interpretation of key terms such as seriousness and risk that are central to the international legal framework is subject to each state’s discretion, with some national systems setting thresholds that allow for potentially dangerous exports to go ahead. This means that the assessment of an arms export licence application is often informed and influenced by extra-legal considerations such as national security, economic gain and other interests. 

Lack of an international mechanism

With no international or regional (e.g. EU-level) institution or judicial body with formal authority or established practice to scrutinise national export decisions, legal enforcement is mostly limited to national courts.

The cases documented by this initiative have highlighted a number of substantive and procedural barriers to the ability to challenge specific arms export decisions and broader export policies either through domestic courts or other judicial and administrative mechanisms. This includes a systemic lack of transparency, restricted jurisdictional scope, and the limited scope of review granted to domestic courts as regards either government or corporate transnational activities.

The role of international and regional bodies

These barriers to accessing effective judicial oversight and review signal a need to better resource the role of international and regional bodies to provide oversight and scrutiny of the ATT’s implementation and enforcement.

This includes bodies from the UN human rights system, including the Human Rights Council, relevant UN treaty bodies and the UN Working Group on Business and Human Rights, as well as regional courts and political bodies such as the European Court of Human Rights, among other Council of Europe bodies, and the EU Working Party on Conventional Arms Exports (COARM). Barriers to domestic oversight and accountability also highlight the need to standardise domestic judicial and parliamentary oversight mechanisms and practice with respect to export decisions and the need to ensure a greater level of transparency through access to information about licences and exports across all jurisdictions.

Glossary of Legal Terms and Principles

Expand each box to see a definition of some key terms and principles used on this site.