07/06/2017 14:27 EDT | Updated 07/07/2017 08:14 EDT

Canada's ATT Legislation Has A Loophole You Could Drive A Tank Through

The Arms Trade Treaty aims to establish global standards for responsible national decision-making on the transfer of conventional weapons.

Chris Wattie / Reuters
Canada's Foreign Affairs Minister Chrystia Freeland delivers a speech on Canada's foreign policy in the House of Commons on Parliament Hill in Ottawa, Ontario, Canada June 6, 2017.

Canadian military exports to the United States have long been exempted from licensing and reporting requirements applicable to every other destination. Not even Canada enjoys the same latitude it affords its southern neighbour.

As indicated in the annual Report on Exports of Military Goods from Canada, most military exports destined for the United States are exempt from export permit requirements. Further, statistics related to exports of military goods and technology to this country therefore are not reported.

In June 2016, Canada finally announced that it would accede to the Arms Trade Treaty, making questions about the compatibility of exemptions to the United States with the expectations and promises of greater rigour and transparency around military exports more pressing. But Bill C-47, the draft ATT legislation tabled in Parliament on April 13, contains no provisions to end these special exemptions.

The ATT calls for the "highest possible common international standards." Yet the arrangement with the United States neither constitutes the highest possible standard nor is it common to the standards applied to others.

Besides the obvious economic benefits to Canada's arms manufacturing industry, Ottawa's position seems to be founded on blind trust in the United States. Not only is the assumption of trustworthiness debatable, but it is not even relevant. The ATT is most definitely not a trust-based regime — it is a binding legal instrument with unambiguous obligations, including an obligation to issue reports on ALL military exports.

It is hard to see how such exemptions could be compatible with ATT obligations, regardless of the recipient. In the case of the United States, they are especially suspect.

The United States is, by far, the largest recipient of Canadian military goods. Project Ploughshares estimates that Canada exports military goods worth as much as $2-billion to the United States annually — typically more than half of total military exports. So even after Canada joins the Arms Trade Treaty, the majority of Canadian military exports will neither be reported nor subject to public scrutiny.

Canada considers the United States the end-user of Canadian-made military goods and components — and it is, for the most part. But the United States is also the largest exporter of weapons and military equipment in the world. Some Canadian components are incorporated into systems in the United States and then exported to third parties without requiring further authorization from Canada, even though recipients could be countries to which Canada would not export military goods.

The inverse situation — Canada's exporting U.S. military goods to a third party without prior authorization — would not be allowed by the United States in most cases.

Critically, the United States is not an ATT state party, and is not expected to become one in the foreseeable future. While the Obama administration did sign the ATT, the United States has not ratified it and is not legally bound by its obligations. Canada, on the other hand, will be a state party and the expectation is that all its arms export regulations will be entirely consistent with the provisions of the treaty, including those related to licensing and reporting obligations.

A widely shared goal of states parties is the universal adoption of the ATT. And it is hard to see how Canada can contribute to that objective when it offers laxer conditions to a non-state party than it does to those states that have agreed to be bound by the treaty's obligations.

Following the announcement that Canada would accede to the Arms Trade Treaty, Project Ploughshares, Amnesty International Canada, Oxfam Canada, and Oxfam Quebec jointly produced a detailed briefing that outlined key elements of Canada's military export controls regime that require attention. This briefing was the basis for discussions with Global Affairs Canada that attempted to support Canada's effective implementation of its Treaty obligations. Specific recommendations included:

  • Canada's export regulations must be adjusted so that export permit authorization applies to all Group 2 equipment shipped to U.S. destinations, as it does for all other states. Subcontracted shipments to the United States — largely components and subsystems—must also be regulated.
  • Canada must amend its national control system to control the transfer of ammunition and parts and components to the United States, which are currently exempt from regulation.

Rather than heed these recommendations, Global Affairs Canada left in place precisely the type of scenario that not only runs contrary to the spirit and objective of the Treaty, but also could set a troubling international precedent. If more and more countries set up bilateral special arrangements instead of common standards, the ATT regime will be gradually but effectively weakened.

Bill C-47 does cover important issues that required attention, such as establishing controls over brokering in military goods between two countries outside of Canada. Further, Bill C-47 creates a legal obligation for the Minister of Foreign Affairs to consider certain assessment criteria before authorizing permits. And while moving from the current guidelines to legal obligations is positive in principle, the value lies in the details of pending regulations — which are still not known.

Illicit and irresponsible transfers of conventional weapons are a significant factor in human suffering worldwide, fuelling armed violence in all its forms. The ATT aims to establish global standards for responsible national decision-making on the transfer of conventional weapons.

At the end of the day, the retention of the special U.S. arrangement overshadows other aspects of Canada's ATT legislation. And if Canada becomes a state party to the ATT while preserving exemptions to the largest recipient of Canadian-made military goods, some may applaud the accession — but there will be no standing ovation.

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