INTRODUCTION

The subject matter of Article 26 of the Arms Trade Treaty (ATT) was a topic of some controversy, owing to its perceived potential to undermine the Treaty’s overall effectiveness.

In setting out the relationship of the ATT with other international agreements, Article 26 provides that existing or future obligations are not prejudiced by the implementation of the ATT, where those obligations are consistent with the Treaty. Additionally, the ATT cannot be cited as grounds for voiding defence cooperation agreements made between States Parties.

The evolution of this largely India-driven provision went through several iterations and served as one of the main’ battlegrounds’ during the negotiations. However, despite the considerable energy consumed in the negotiations on this Article, the potential effects of Article 26 on the implementation or effectiveness of the ATT would appear to be minimal.

NEGOTIATION HISTORY

PRIOR TO 2013 FINAL UN CONFERENCE ON THE ATT

The origins of Article 26 can be traced to the Preparatory Committee’s report on the initial elements ‘needed to attain an effective and balanced legally binding instrument on the highest possible common international standards for the transfer of conventional arms’ (UNGA, 2012a, para. 3). Rather innocuously among the ‘Final Provisions’ was the following language: ‘[T]his Treaty shall not affect the right of States Parties to enter into bilateral or multilateral agreements provided that these agreements are compatible with States ’ under the Treaty’ (UNGA, 2012a, Annex II, p. 21). Thereafter, India, a self-described ‘significant importer and exporter of conventional arms’, included among its 30 March 2012 views on the ATT that the’ treaty should not apply retrospectively or affect pre-existing agreements in any manner’ (UNGA, 2012b, pp. 38–39).