History of Global Arms Transfer, 3 (2017), pp. 3-20

Controlling Arms Transfers to Non-State
Actors: From the Emergence of theSovereign-State System to the Present †By TAMARA ENOMOTO*
Television media accounts often report with disapproval that large amounts ofarms are flowing into the Middle East and North Africa and falling into the handsof non-state armed groups. In fact, states such as Qatar, Saudi Arabia, and theUnited States have supplied assault rifles, mortars, rocket-propelled grenades,
ammunition, and other kinds of weapons to Syrian rebel groups since the conflictbegan in Syria in 2011. Some of these arms have been diverted to a broader rangeof groups, including the Islamic State in Iraq and Syria (ISIS). But why, exactly,
are arms transfers to non-state actors considered morally, ethically, or legally
problematic? The problematization of arms transfers to non-state actors haschanged significantly since the formation of the sovereign-state system. This
article gives an overview of the shifts in international policy debates on arms
transfers to non-state actors from the emergence of the sovereign-state system to
the Cold War period. It then introduces how ‘the problem’ has been framed anddefined from the 1990s onwards. The article argues that each framing of ‘theproblem’ has reflected the predominant conception of statehood in each period.
Finally, it outlines the current state of affairs and future prospects for international
policy debates.
It has not been uncommon throughout history to problematize arms possession by, or arms
transfers to, individuals and groups other than the ruling authority. In medieval Europe,
institutions led by the papacy, monarchy, high nobility, and commune competed among
themselves while seeking to wrest the authority to use force from lesser ranks anddissidents.1 Some kings of France, for instance, such as Louis IX (1214-70), Philip IV the
Fair (1268-1314), and Philip V (1316-22), sought to ban tournaments and trial by battle as* Author Affiliations: Tamara Enomoto, Research Fellow, Organization for the Strategic Coordination of
Research and Intellectual Properties (Research Institute for the History of Global Arms Transfer), Meiji
University.
† Previous versions of this article were presented to the 21st Research Symposium of the Japan Association ofInternational Security and Trade, 19 March 2016; the international workshop, ‘Arms Transfer, Regional Conflicts,
and Refugee Crisis in the Balkans and Middle East’, organized by the Meiji University Research Institute for theHistory of Global Arms Transfer on 2 July 2016; the workshop on the project ‘“African Potential” andOvercoming the Difficulties of the Modern World’, on 12 Nov. 2016. The author would like to thank Keith
Krause, Nicholas Marsh, and Owen Greene for extensive advice and comments. This work is partially funded by
the Ministry of Education, Culture, Sports, Science and Technology (MEXT)-supported Program for the Strategic
Research Foundation at Private Universities, 2015-2019, JSPS KAKENHI Grant Numbers JP16K17075,
JP16KT0040, JP16H06318, and JP25244029. Part of the observation is based on my experience as a staff
member in charge of arms control and humanitarian issues at an international NGO between 2003 and 2015 andas a consultant to other NGOs since 2015. The views expressed in this article are mine and do not represent thoseof the organizations for which I have worked.
1 Heyn, ‘Medieval’; idem, Peacemaking.

－3－

TAMARA ENOMOTO
efforts to suppress private violence—violence which was not wielded or authorized by theruling authority—and to consolidate the legitimate right of the central authority to use force
on behalf of the kingdom.2 The church also prohibited private violence, such as jousts andtournaments, in the canons adopted at councils in the twelfth and thirteenth centuries.3 Suchinitiatives by secular and religious actors contributed collectively to the gradual separationof public from private violence, the consolidation of the right of the central authorities touse force on their own behalf, and the evolution of the sovereign state.4 The modern jus adbellum principle of the right authority—the notion that a just war must be authorized by thesovereign state—also evolved through this process.5
In Japan, the prominent feudal lord Hideyoshi Toyotomi (1536-98) issued an edict toexpel Christian missionaries in 1587, in part because the mission of the Society of Jesus(iezusu-kai) had imported a large number of firearms, artillery systems, ammunition, andother related materials since its members first arrived in Japan in 1549.6 Such importation
facilitated the militarization of both the mission community and the local feudal lords fromwhom the mission sought protection. 7 Hideyoshi saw it as problematic; he was in theprocess of completing the military unification of Japan and was planning to regulate private
violence while transforming local feudal lords into a formal professional warrior class.8 In
the year after the edict, he also ordered sword hunting (katanagari), a measure widely used
by Japan’s ruling class between the thirteenth and nineteenth centuries to restrict the rightto possess and/or carry weapons.9
Initiatives to outlaw private violence, or to regulate private ownership of the means ofviolence, have been prevalent throughout history. However, it was only after the formationof the sovereign-state system that arms transfers from one state to non-state actors (i.e.,
actors other than sovereign states) located in another state emerged as an issue of concern. 10
In general, non-state actors can include a wide range of actors, such as armed rebel groups,
private military or security companies, arms brokers, civil institutions such as museums,
and civilians, including sports shooters, hunters, and gun collectors.11 The exact term ‘nonstate actor’ is relatively new, and policy makers have not necessarily agreed upon a detailed
definition of the term.12 Nevertheless, since the emergence of the sovereign-state system,
efforts have often been made to reach an international agreement to control arms transfers
2 Kaeuper, War.
3 For the canons adopted at the Council of Clermont in 1130, see Barker, The tournament, p. 70. The canons

adopted at the Second Council of the Lateran in 1139, the Third Council of the Lateran in 1179, and the FourthCouncil of the Lateran in 1215 are available at the Papal Encyclicals Online. http://www.papalencyclicals.net/(Last accessed on 1 Dec. 2016)
4 Heyn, ‘Medieval’.
5 Ibid.
6 Takahashi, Buki.
7 Ibid.
8 Ibid.
9 It should be remembered that the measure was generally not designed for the total disarmament of thosepeople who were not members of the warrior class. See Fujiki, Katanagari; Takei, Teppou.
10 The Peace of Westphalia in 1684 is generally seen as a key moment in the gradual formation of thesovereign-state system, a system of political authority based on territory, mutual recognition, autonomy, andcontrol. See Krasner, ‘Rethinking’, p. 17. The author thanks Nicholas Marsh for his advice to extend the scope of
this study to eras before the late nineteenth century.
11 Biting the Bullet Project, Developing.
12 For instance, there is currently no shared view as to whether sub-national militaries or security agencies suchas the Peshmerga and Asayish in the Kurdistan region of Iraq should be considered non-state actors. A more
contentious issue is whether entities that have not been recognized by many states, such as Palestine, Somaliland,
and Taiwan, should be regarded as non-state actors. See Holtom, ‘Prohibiting’, pp. 9-10; McDonald, Hassan, andStevenson, ‘Back to basics’, p. 123.

－4－

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
to non-state actors not authorized by the state in which they are located. Given the long
history of such efforts and the ongoing controversy over arms exports to Syrian rebel
groups, the absence of analysis of the various framings of ‘the problem’ represents aknowledge gap in academic and policy work.
The ways in which ‘the problem’ of arms transfers to non-state actors has been framed ininternational policy debates are examined herein. Although the cases shown are notexhaustive, it can be argued that the framing of ‘the problem’ in each prominent case has
been indicative of the dominant conception of statehood in each period. In this view, theway in which the recently adopted Arms Trade Treaty (ATT)13 deals with the issue is amanifestation of the prevalent view of statehood in the first half of the 2010s. However, thelanguage of the ATT regarding arms transfers to non-state actors is not universally
accepted, nor is its associated perception of statehood. In future, the dominant discourse
within policy circles regarding ‘the problem’ may change even more, just as it has changed
throughout history from the creation of the sovereign-state system to today.

I
Until the first half of the twentieth century, ‘the problem’ of arms transfers to non-state
actors tended to be framed as the inadmissibility of arms transfers to people who wereregarded as not having the will and ability to form and manage a sovereign state. For
instance, a treaty agreed by the United Kingdom and Spain in 1814 stipulated that theformer would take the most effective measures to prevent its subjects from supplying arms,
ammunition, and other related materials to the American rebels against Spanish rule, so thatthe ‘subjects of those provinces’ would ‘return to their obedience to their lawful
sovereign’.14 On the other hand, the United Kingdom and other European states supplied
arms to American entities which were recognized as ‘lawful sovereign states’.15 Anotherexample is a convention signed in 1852 by the United Kingdom and the Boers(Voortrekkers), settlers of Dutch descent who had moved to the interior of Southern
Africa.16 The convention recognized the Boers’ right to govern themselves and permitted
them access to arms and ammunition while prohibiting ‘all trade in ammunition with thenative tribes’.17
This framing of ‘the problem’, with an additional touch of late-nineteenth-century
imperialism, also manifested itself in the first multilateral agreement adopted by most of
the great powers to control arms transfers since the formation of the sovereign-state system:the 1890 Brussels Act.18 The Brussels Act, formally titled the General Act of the Brussels
Conference Relative to the African Slave Trade, prohibited the transfer of firearms andammunition to much of the African continent,19 into which a substantial number of
13 The text of the ATT was annexed to the draft decision submitted by the president of the final conference(UN Doc. A/Conf. 217/2013/L.3, Draft Decision Submitted by the President of the Final Conference, 28 March2013) and was adopted in the United Nations General Assembly (UNGA) resolution on 2 April 2013 (UN Doc.
A/67/L.58, The Arms Trade Treaty, 2 April 2013).
14 Treaty of Friendship and Alliance between his Britannic Majesty and his Catholic Majesty, Ferdinand theSeventh, 5 July 1814, Article 3.
15 Gillespie, A history, p. 18.
16 Sand River Convention, 16 Jan. 1852.
17 Ibid. See Yokoi, Daiei teikoku, pp. 64-68.
18 General Act of the Brussels Conference Relative to the African Slave Trade, 2 July 1890.
19 Article 8 of the Brussels Act states as follows: ‘The importation of firearms, and especially of rifles andimproved weapons, as well as of powder, ball and cartridges, is, … prohibited in the territories comprised
between the 20th parallel of North latitude and the 22d parallel of South latitude, and extending westward to the－5－TAMARA ENOMOTO
European-made arms had flooded.20 As the formal name of this treaty indicates, the main
subject of the conference was the slave trade from Africa to other parts of the world,
especially to the Arab world.21
In the policy debates leading up to the adoption of this treaty, African people weregenerally not depicted as autonomous, rational subjects capable of managing a sovereignstate, of exercising treaty-making powers, or of engaging in diplomatic relations with othersovereign states.22 Rather, they were seen as ‘barbaric’ contributors to the slave trade who
were unable and unqualified to further the collective social good. Their acts of violence orresistance against the colonizers—the ‘civilized states’—were regarded as irrational,
illegitimate, and backward acts of nonsense that rejected the benefits of civilization.23
Moreover, the wars between African groups were considered a source of humanitariancatastrophe and slave hunting. 24 Therefore, the prohibition of arms transfers to such‘backward’ people was seen as necessary to stop their ‘barbaric’ infighting and slave
hunting and to bring the benefits of civilization to them under the protection of the‘civilized states’.25
The prevailing doctrine at the time of the Brussels Act was the sovereign right of a state todetermine for itself whether and when to resort to war. 26 From the latter half of theeighteenth century, the ultimate prerogative of a state to wage war came to be regarded as alegitimate and fundamental element of state sovereignty. As such, arms transfers to state
actors, or ‘civilized sovereign states’, were largely considered legitimate, unless they werepotential or actual enemies of the exporting state.27 At the same time, the laissez-fairepolicy of minimum governmental interference in the economic affairs of individuals andsociety was prevalent in the late nineteenth century.28 Therefore, governments rarely sought
to regulate arms production and transfers by private companies, except in times of war.29

Atlantic Ocean and eastward to the Indian Ocean and its dependencies, including the islands adjacent to the coast
within 100 nautical miles from the shore’.
20 Atmore, Chirenje, and Mudenge, ‘Heiki’; Beachey, ‘The arms trade’; Guy, ‘A note’.
21 Berlioux, Slave trade, pp. 1, 3-4, 72-3, 75-6; Clarke, Cardinal Lavigerie, pp. 246-9, 250-2, 254, 332-4, 344;
Pasha, Seven years, pp. 84-5.
22 Matthews, ‘Free trade’; Miers, Britain.
23 Kurimoto, Mikai no sensou, p. 148.
24 Berlioux, Slave trade, pp. 1, 76; Casati, Ten years in Equatoria, pp. 289, 291; Clarke, Cardinal Lavigerie,pp. 250-2, 254, 332-4, 344; Pasha, Seven years, pp. 84-5.
25 Bain, Between anarchy, p. 68; Louis, ‘Sir Percy Anderson’s’; Matthews, ‘Free trade’.
26 Joyner, International law, p. 163.
27 Enomoto, ‘Reisen shuuketsugo’, pp, 168-79.
28 Onozuka, ‘Heiki’, pp. 6-11. It should be born in mind that European states generally sought to control thearms trade prior to the shift in the underlying economic ideology of trade from mercantilism to capitalism. Mostof the previous control measures had been characterized by unilateral initiatives and had been designed to protect
technological lead or to safeguard scarce weapons. See Krause, Arms and the state, pp. 37-48, 59-61; Krause and
MacDonald, ‘Regulating’, pp. 708-11.
29 Krause and MacDonald, ‘Regulating’, pp. 711-2. Whether a neutral state could legitimately supply arms tobelligerents of war was fiercely debated between the United Kingdom and the United States over the case of theConfederate commerce raider Alabama in the 1860s and 1870s. The case reaffirmed the prevailing principle ofinternational law of the time that there was no general obligation of neutral states to prevent private arms
transfers to belligerents of war. Several decades later, the Hague Convention (V) Respecting the Rights andDuties of Neutral Powers and Persons in Case of War on Land of 18 Oct. 1907 and the Hague Convention (XIII)
Concerning the Rights and Duties of Neutral Powers in Naval War of 18 Oct. 1907 prohibited the supply of arms
by a neutral state to a belligerent state. Yet, arms transfers by private suppliers were outside of the scope of theprohibition. See Garcia-Mora, ‘International law’; Stone, ‘Imperialism’, pp. 214-7.

－6－

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORSII
The interwar period saw a series of negotiations aimed at creating a modified version of theBrussels Act. Joined by the newly independent small states, the Convention for the Controlof the Trade in Arms and Ammunition was adopted in 1919,30 and the Convention for theSupervision of the International Trade in Arms and Ammunition and in Implements of War
was adopted in 1925.31
These treaties literally became dead letters even before the ink was dry as a result of theunwillingness of many states to ratify them.32 Nevertheless, the policy debates leading up
to the adoption of these treaties—as well as the actual texts of the documents—do reveal
the dominant perception of the time regarding arms transfers to non-state actors. The seriesof negotiations were led by the great powers, who insisted that it was the moral duty of‘civilized states’ to prevent arms from falling into the hands of those who did not meet the‘standard of civilization’ and who were, therefore, not entitled to sovereign equality.33 As aresult, the great powers proposed a broader prohibited zone that included not only parts ofAfrica, but also Transcaucasia, Persian lands and/or waters, Gwadar, the Arabian Peninsula,and the continental regions of Asia that were part of the Turkish Empire.
The logic behind the prohibition was made apparent in the treatment of Iran throughout
the negotiations for these two treaties. During the 1910s, Iran underwent a series ofoccupations and invasions by Britain, Russia, and other forces,34 and it was not part of thenegotiations for the treaty adopted in 1919, which designated Iran and its waters (thePersian Gulf and the Sea of Oman) as part of the ‘prohibited zone’.35 In 1921, the Reza
Khan regime emerged, and it sought to re-establish Iran’s sovereignty under a strong
modern central government.36 Iran thus took part as a ‘civilized sovereign state’ in thenegotiations for the treaty adopted in 1925. During this round of negotiations, Iran argued
that as a ‘civilized sovereign state’, the country would not accept being included in the‘special zone’37, stressing that it refused to be treated in an unequal and discriminatory
manner.38 As a result, Iranian land was excluded from the ‘special zone’.39 However, Britain
vehemently insisted that the Persian Gulf and the Sea of Oman must remain in this zone,
and many other states either took Britain’s side or avoided taking any position.40 In the end,
Iran walked away from the negotiations, claiming that banning arms transfers to its gulf
would in practice prevent the country from importing arms via the sea.41
30 Convention for the Control of the Trade in Arms and Ammunition, 10 Sept. 1919.
31 Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of

War, 17 June 1925.
32 The treaty adopted in 1919 did not specify a fixed number of states to express their consent for its entry into
force; instead, its Article 26 stated that it ‘would come into force for each Signatory Power from the date of thedeposit of its ratification’. Therefore, the treaty did enter into force for a small number of states which depositedtheir instruments of ratification. However, it was widely seen as a dead letter by 1923, which prompted the next
round of negotiation. See Stone, ‘Imperialism’, pp. 219-20.
33 Ibid., p. 218.
34 Daniel, The history, pp. 127-9.
35 Convention for the Control of the Trade in Arms and Ammunition, 10 Sept. 1919, Article 6.
36 Daniel, The history, pp. 133-5.
37 This expression was used to sound less aggressive during this round of negotiation. See LNA, A.13.1925.IX,
Proceedings of the Conference for the Supervision of the International Trade in Arms and Ammunition and in
Implements of War, held in Geneva, 4 May to 17 June 1925, pp. 254-5; Stone, ‘Imperialism’, p. 221.
38 Stone, ‘Imperialism’, pp. 224-5.
39 LNA, A.13.1925.IX, p. 12; Stone, ‘Imperialism’, p. 225.
40 LNA, A.13.1925.IX, pp. 380-1; Stone, ‘Imperialism’, p. 226; TNA ADM 1/8699/113.
41 Krause and MacDonald, ‘Regulating’, p. 717; LNA, A.13.1925.IX, pp. 12, 375-80, 401, 704, 709, 711;
Stone, ‘Imperialism’, pp. 225-6.

－7－

TAMARA ENOMOTOThe logic that Britain used to justify the inclusion of Iranian waters in the ‘special zone’ isof great significance. Britain did not argue for the need to prevent arms flows to Iran itself,
but it asserted that Iranian waters constituted a hotbed of arms traffic to the ‘backward’
peoples living in the surrounding regions, especially to those disturbing the ‘public order’in India, which was under British control.42 Whether or not this logic fully reflected the real
intent of Britain,43 it certainly embodied the view that transferring arms to sovereign statesshould not be prohibited, whereas transferring arms to ‘backward’ people who did not meetthe standard of civilization was indeed problematic and should be prevented.
In addition, it is critical to recognize that these interwar treaties included some control
over arms transfers between states, which had been entirely outside the scope of the 1890
Brussels Act. On both sides of the Atlantic, a growing public outcry for regulation of the‘merchants of death’44 necessitated some efforts to control arms transfers,45 and the idea of
war as legitimate violence between equal sovereign states was increasingly called into
question.46 Thus, the treaties of this period included the prohibition of arms transfers,
except for those transfers sanctioned by both the exporting and importing states.47 They
also included reporting mechanisms for licensed arms exports and imports. Such measures
could have placed the ‘merchants of death’ under some control by governments and could
have limited arms transfers to non-state actors not authorized by the state in which they
were located. They could have also facilitated public scrutiny over authorized arms
transfers.
However, the licensing and reporting measures were criticized by smaller arms-importingstates, which saw them as infringements to their sovereignty and security. These critics
claimed that licensing would put smaller importing states at the mercy of producers who
might recognize a rebel group instead of the legitimate government of an importing state.48
They also argued that publishing arms imports and exports meant that the armaments ofimporting states would be revealed, while the producing states would enjoy secrecy as totheir armaments.49 While these measures were included in the treaties at the insistence ofthe great powers, few importing states rushed to ratify them.50
Despite the divergent positions among participant states on the scope of the prohibited, or
special, zone, as well as on the licensing and reporting measures, the view that statesshould not transfer arms to people who were regarded as unable or unqualified to form andmanage a sovereign state and to pursue the collective good was widely shared throughout
42 LNA, A.13.1925.IX, pp. 399-400; Stone, ‘Imperialism’, pp. 225-6; TNA ADM 1/8699/113.
43 Britain in fact faced repeated uprisings and resistance against the British rule in the surrounding regions ofIran, especially in India, at the time of the negotiation of the treaty. See Chew, Arming the periphery.
44 This term refers to arms manufacturers and dealers who were accused of having instigated and perpetuatedthe First World War in order to maximize their profits from arms sales.
45 Anderson, ‘British rearmament’; Cortright, Peace, pp. 98-100; Harkavy, The arms trade, p. 215; Onozuka,‘Heiki’; Stone, ‘Imperialism’, p. 217; Yokoi, Daiei teikoku.
46 Cortright, Peace, pp. 62-3. There were other sets of initiatives to control arms transfers to particular states
during this period. For instance, the 1920s peace treaties with the defeated states (Germany, Austria, Hungary,Turkey, and Bulgaria) in the First World War imposed prohibition of imports and exports of arms on these states.
There were also some unilateral and multilateral arms embargoes in specific conflicts, such as those in China in
the 1910s and 1920s and the Chaco war between Bolivia and Paraguay between 1932 and 1935. See Krause and
MacDonald, ‘Regulating’, pp. 714, 720-722; Yokoyama, ‘Chugoku’.
47 Convention for the Control of the Trade in Arms and Ammunition, 10 Sept. 1919, Article 1; Convention for
the Supervision of the International Trade in Arms and Ammunition and in Implements of War, Articles 2-5.
48 LNA, A.13.1925.IX, pp. 178-182; 583-5; Stone, ‘Imperialism’, pp. 222-4.
49 Stone, ‘Imperialism’, pp. 226-8.
50 The interwar negotiations did not yield any tangible agreement, yet they facilitated the institutionalization ofpeacetime licensing mechanisms for arms transfers in many of the great powers. See Stone, ‘Imperialism’;Krause and MacDonald, ‘Regulating’.

－8－

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
the negotiations.

III
The decades following the end of the Second World War saw a significant shift in policy
debates on arms transfers to non-state actors. Against a backdrop of the independence ofmost of the former colonies, the dominant conception of sovereignty changed during thisperiod, which affected the framing of arms transfers to non-state actors.
As Robert Jackson argues, the game of international relations shifted after the Second
World War from one based on positive sovereignty, or a demonstrated ability for effective
self-governance and the fulfilment of the ‘standard of civilization’, to a new game based on
negative sovereignty, the formal legal entitlement to freedom from outside interference.51
In the new rules of the game, the principles of sovereign equality and non-intervention
were respected for all states regardless of their empirical capabilities as organized politicalsystems.
For instance, the Declaration on the Granting of Independence to Colonial Countries andPeoples, adopted by the United Nations General Assembly (UNGA) in 1960, stated that all
peoples have the right to self-determination and that inadequacies in political, economic,
social, or educational preparedness should never serve as pretexts for delaying
independence.52 The idea that the principles of sovereign equality and non-intervention,
which had been formulated through the development of the sovereign-state system, 53
should be respected for any state regardless of its conditions was strongly held by the
newly independent states and was confirmed in UNGA resolutions in the 1960s and1970s.54
The new negative sovereignty norms were emphasized by southern states between the
1950s and 1970s, when western states sought to regulate international arms transfers,
including transfers to states. At the UNGA, western states proposed resolutions to examine
the matter of international arms transfers in order to consider the possibility of developing
an international arms transfer registration and publicity system.55
Malta, for example, submitted a draft UNGA resolution in 1965 which invited theEighteen-Nation Committee on Disarmament to consider the question of arms transfers
between states ‘with a view to submitting to the General Assembly proposals for theestablishment of a system of publicity through the United Nations’.56 Malta argued for theneed to address the problem of local arms races in the third world, expressing concerns thatthey were hindering economic and social development by diverting scarce resources. It alsostressed that an effective system of international arms transfer registration and publicity
would build confidence among states. 57 Similar draft resolutions were proposed by
51 Jackson, Quasi-states, pp. 25-29.
52 UN Doc. A/RES/15/1514, Declaration on the Granting of Independence to Colonial Countries and Peoples,

14 Dec. 1960.
53 Krasner, ‘Rethinking’.
54 UN Doc. A/RES/20/2131, Resolution 2131 (XX): Declaration on the Inadmissibility of Intervention in theDomestic Affairs of States and the Protection of Their Independence and Sovereignty, 21 Dec. 1965; UN Doc. A/
RES/25/2625, Resolution 2625 (XXV): Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the United Nations, 24 Oct. 1970.
55 Catrina, Arms transfers, p. 138; Stockholm International Peace Research Institute (SIPRI), The arms trade,pp. 100-8; Wulf, ‘United Nations’, p. 230.
56 Draft resolution submitted by Malta, in SIPRI, The arms trade, pp. 102.
57 Ibid., pp. 101-2.

－9－

TAMARA ENOMOTO
Denmark, Ireland, Malta, and Norway in 1968,58 and again by eighteen states including
Ireland, Denmark, Japan, and Norway in 1976. 59 However, states in the global south
generally criticized the proposals, insisting that they were based on discriminatory ideas
against smaller arms-importing sovereign states and that they could be used as an
instrument for ‘the haves’ to intervene in the internal affairs of ‘the have-nots’.60 As aresult, the proposed resolutions were never adopted in the UNGA between the 1950s and1970s.
In these circumstances, the dominant argument of the time regarding arms transfers to
non-state actors also reflected a shift in the conceptualization of state sovereignty. This isembodied in one of the most well-known legal cases for students of international law: thecase brought to the International Court of Justice (ICJ) by Nicaragua against the UnitedStates concerning military and paramilitary activities in and against Nicaragua.
In 1979, the Sandinista National Liberation Front (FSLN) established a revolutionary
government in Nicaragua. In the following years, the United States suspended its aid to
Nicaragua and instead provided assistance, including the provision of arms, to the Contra
rebel militants.61 In April 1984, the Nicaraguan government brought its case against theUnited States to the ICJ. Nicaragua argued that the United States had resorted to the use offorce against Nicaragua, intervened in its internal affairs, and threatened its sovereignty,
territorial integrity, and political independence.62
In its 1986 judgment, the ICJ held that the principle of non-intervention and theprohibition of the threat or use of force had been established in customary internationallaw.63 On the matter of arming non-state actors within the territory of another state, the ICJ
concluded that such assistance might amount to intervention in the internal or externalaffairs of another state and could be regarded as a threat or use of force.64 Moreover, thecourt ruled that by arming the Contra militants, the United States had acted in breach of its
obligations under the customary international law principles of non-intervention and of theprohibition of the threat or use of force.65 Considering the background, it can be said that
the ICJ’s judgment in 1986 reflected the view of statehood predominant during that era—that whether or not a certain state is considered to meet the ‘standard of civilization’, its
state sovereignty and the principle of non-intervention should be respected.
It should be remembered, though, that the ICJ admitted that there had been a number of
instances of foreign intervention for the benefit of forces opposed to the government ofanother state.66 In fact, both the western and eastern blocks, as well as newly independent
states in the global south, supplied arms to southern anti-colonial movements and antigovernment groups during the Cold War.67 For instance, the Soviet Union supplied arms to‘socialist-oriented’ non-state actors, such as anti-colonial movements in Angola and58 Ibid., pp. 103-5.
59 Catrina, Arms transfers, p. 138.
60 Krause, ‘Controlling the arms trade’, p. 1030; Muni, ‘Third World’, pp. 203-7.
61 It is known as the ‘Iran-Contra affair’, a scandal that occurred during the second term of Ronald Reagan’s

administration. The administration secretly supplied weapons to Iran in hopes of securing the release of American
hostages held in Lebanon by Hezbollah, a group linked to the Iranian government, and then diverted a portion of
the proceeds from the weapon sales to arm the Contra. See Busby, Reagan and the Iran-Contra affair.
62 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America).
Merits, Judgment. I.C.J. Reports 1986, para. 15.
63 Ibid., paras. 188-190, 192, 193, 195.
64 Ibid., para. 195.
65 Ibid., paras. 228, 238, 242, 292.
66 Ibid., para. 206.
67 Garcia, ‘Arms transfers’; Smith, ‘Weapon transfers’, p. 46.

－ 10 －

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
Mozambique and anti-government groups in El Salvador.68 As Stephen Krasner argues, theprinciples associated with both Westphalian sovereignty, such as the exclusion of external
actors from domestic authority configurations, and international legal sovereignty, such as
mutual recognition, have in reality been violated frequently since the formation of thesovereign-state system.69 Nevertheless, it can rightly be said that the ‘the problem’ of arms
transfers to non-state actors was framed and defined differently in the Cold War period thanit had been in previous periods, reflecting the dominant idea of statehood and the game ofnegative sovereignty which states ostensibly played during this time.

IV
Since the 1990s, three approaches, or schools of thought, have emerged about thelegitimacy and admissibility of arms transfers to non-state actors. This section will examine
these approaches one by one.
What could be called a ‘blanket-ban’ approach was proposed in the 1990s and early
2000s. Since the 1990s, the so-called ‘new wars’ have been problematized in policy
circles.70 It has been argued that these new wars are not necessarily fought between states
but within states or beyond states, often involving a number of non-state actors that receive
arms from other states, commit atrocities, bring human suffering, and undermine the fruitsof development.71 In order to address this problem, during the 1990s and early 2000s
Canada and some European states proposed that states should agree on a blanket ban on all
non-state-sanctioned arms transfers to non-state actors—that is, arms transfers to parties
not authorized by the states in which they are located.72
Many southern states, especially those in Africa, have supported the blanket-ban
approach.73 They tend to claim that non-state groups and individuals are the roots of evil
and that they misuse arms and bring enormous suffering to their populations. They also
tend to insist that non-state-sanctioned arms transfers to non-state actors constitute a
violation of the principle of non-intervention.
However, it is not only acts of violence by non-state actors which has been problematizedsince the 1990s. In the new wars literature as well as in policy debates, the violations ofinternational human rights law and/or international humanitarian law by national militaryand security forces, especially those of states in the global south, have also been matters ofconcern.74 In other words, the ability and will of states, especially states in the global south,
to ensure human security, respect human rights, and pursue the collective social good havebeen seriously brought into question, along with the legitimacy of state violence. Since thelatter half of the 1990s, the notion of a ‘responsibility to protect’ has received a certain
extent of support from actors including governments, scholars, and non-governmentalorganizations (NGOs), especially those in the global north.75 According to this notion,
68 Shultz, The Soviet Union.
69 Krasner, Power, p. 197. On the other hand, arms transfers to non-state actors generally took place covertly,

which may be interpreted as implicit acknowledgement of the illegality of such acts. See Henderson, ‘The
provision’, p. 643.
70 Kaldor, New and old wars.
71 Smith, ‘Weapon transfers’, pp. 45-7.
72 Canada, Ministry of Foreign Affairs, A proposed global convention; Capie, Armed groups, pp. 10-1; Holtom,‘Prohibiting’, p. 7; Poitevin, ‘European Union’, p. 17; Yihdego, ‘The Arms Trade’, pp. 150-1.
73 There are exceptions, such as some Arab countries and Iran, which export arms to Palestine. See Garcia,‘Arms transfers’, pp. 154-7; Holtom, ‘Prohibiting’, p. 9.
74 Anderson, Do no harm; Collier, Wars, guns, and votes; Kaldor, New and old wars.
75 Clapham, ‘Weapons’, pp. 167-8.

－ 11 －TAMARA ENOMOTO
Westphalian sovereignty and international legal sovereignty are not inherent rights of states
but are contingent on a state’s positive sovereignty. In other words, they are conditioned
upon a state’s capacity and willingness to protect its population. Failure to fulfil this
responsibility may lead to intervention by outside actors, who should now bear
responsibility. Some of these outside actors may interpret this responsibility as including
the supply of weapons to non-state actors such as rebel groups.76
As the ability and will of states to protect their own populations and pursue the collective
good rapidly came under suspicion, a UNGA resolution to establish an international arms
transfer register system, a measure which never materialized during the Cold War period,
was adopted in 1991.77 Moreover, the idea of evaluating the risk of misuse before exportingstates decide whether to authorize arms transfers to other states gained momentum. In the
1990s and 2000s, the permanent members of the United Nations Security Council (P5),78
the European Council,79 the European Union (EU),80 the Organization for Security and Cooperation in Europe (OSCE),81 the United Nations Disarmament Commission (UNDC),82
the Wassenaar Arrangement,83 the Organization of American States (OAS),84 East andCentral African states, 85 the Central American Integration System (SICA), 86 and theEconomic Community of West African States (ECOWAS)87 developed and agreed upon acommon criteria against which the potential risks of misuse should be assessed on a caseby-case basis before authorizing arms transfers.
At the same time, from within the policy circles of governments, NGOs, and academics,
especially those in the global north, there emerged what could be called a ‘hard case’approach to the issue of arms transfers to non-state actors. It was argued that there could becertain hard cases where non-state-sanctioned arms transfers to non-state actors wereindeed legitimate.88 They suggested that in cases, for example, in which a group facing
repression or genocide by its state was trying to acquire arms to protect itself, non-state76 Holtom, ‘Prohibiting’, pp. 13-4; Stavrianakis, Xinyu, and Binxin, Arms and the responsibility to protect.
77 UN Doc. A/RES/46/36L, Transparency in Armaments. It must be recalled that the resolution was based on areport prepared by a UN Group of Government Experts (UN Doc. A/46/301, Study on Ways and Means of
Promoting Transparency in International Transfers of Conventional Arms. Report of the Secretary-General),which was set up by a UNGA resolution adopted before the end of the Cold War in 1988 (UN Doc. A/
RES/43/75I, International Arms Transfers).
78 Guidelines for Conventional Arms Transfers. Communique issued following the meeting of the P5 in
London, 18 Oct. 1991.
79 Conclusions of the Presidency: Declaration on Non-Proliferation and Arms Exports, adopted at the European
Council Meeting in Luxembourg, 28-29 June 1991; Conclusions of the Presidency: Non-Proliferation and Arms
Exports, adopted at the European Council Meeting in Lisbon, 26-27 June 1992.
80 EU Council, 8675/2/98, Rev. 2, European Union Code of Conduct on Arms Exports, 5 June 1998.
81 FSC/3/96, Principles Governing Conventional Arms Transfers, 25 Nov. 1993; FSC.DOC/1/00/Rev.1, OSCE
Document on Small Arms and Light Weapons, 24 Nov. 2000.
82 Guidelines for International Arms Transfers in the Context of General Assembly Resolution 46/36 H of 6
Dec. 1991.
83 Best Practice Guidelines for Exports of Small Arms and Light Weapons, 11-12 Dec. 2002.
84 Draft Model Regulations for the Control of Brokers of Firearms, Their Parts and Components andAmmunition, approved at the 34th Regular Session of the Inter-American Drug Abuse Control Commission(CICAD), 17-20 Nov. 2003.
85 Best Practice Guidelines for the Implementation of the Nairobi Declaration and the Nairobi Protocol on
Small Arms and Light Weapons, approved at the Third Ministerial Review Conference of the Nairobi Declarationon the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and theHorn of Africa, 20-21 June 2005.
86 Code of Conduct of Central American States on the Transfer of Arms, Ammunition, Explosives and Other
Related Material, 2 Dec. 2005.
87 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials,
14 June 2006.
88 Biting the Bullet Project, Developing.

－ 12 －

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
sanctioned arms transfers to such a group could be considered legitimate if the group’s
prospects for success in achieving its just cause were high and if the group had the will andability to use the arms with proper restraint and to prevent diversion through safe storage.89
In addition, during the 2000s and 2010s an idea that could be termed a ‘criteria approach’
gradually evolved, meaning that common criteria are to be applied to all arms transfers,
regardless of whether the recipient is a state actor. By the time of the final negotiation
stages of the ATT between 2010 and 2013, all three competing approaches were available
for consideration.
The following section discusses the choices states have taken regarding the three
approaches described above within the context of each international agreement since the1990s.

V
First, some agreements prohibit arms transfers to non-state actors. The United Nations
Security Council (UNSC) resolutions adopted under the authority of Chapter VII, Article
41, of the Charter of the United Nations impose arms embargoes against the entire
territories of particular states or against non-state individuals and groups operating inparticular territories.90 UNSC resolution 1373 prohibits arms transfers to entities or persons
involved in terrorist acts.91 UNSC resolution 1540 prohibits transfers of weapons of mass
destruction to non-state actors. 92 UNSC resolution 1390 prohibits arms transfers toindividuals, groups, undertakings, and entities associated with Al-Qaida and the Taliban,
whose scope is not limited to the territory of a particular state. 93 There are also somemultilateral forums, such as the EU and the OSCE, which have imposed arms embargoes
against the entire territories of certain states or against certain non-state actors.94 Someother agreements prohibit non-state-sanctioned transfers of man-portable air-defence
systems (MANPADs), such as UNGA resolutions,95 documents adopted at the Wassenaar
Arrangement in 2000, 2003, and 2007,96 an Action Plan adopted by the Group of Eight(G8) in 2003,97 an agreement at the Asia-Pacific Economic Cooperation (APEC) in 2003,98
and documents adopted at the OSCE in 2004 and 2008.99 These prohibition measures are
based on the idea to problematize particular non-state actors and/or the provision of
89 Ibid.
90 See the list of UN arms embargoes targeting non-state actors, 1991-2011, in Holtom, ‘Prohibiting’, p. 11.
91 UN Doc. S/RES/1373, Resolution 1373, 28 Sept. 2001.
92 UN Doc. S/RES/1540, Resolution 1540, 28 April 2004. The resolution defines a non-state actor as an‘individual or entity, not acting under the lawful authority of any State in conducting activities which comewithin the scope of this resolution’.
93 UN Doc. S/RES/1390, Resolution 1390, 16 Jan. 2002.
94 See SIPRI’s website for the list of arms embargoes agreed at the UN and other multilateral forums. https://www.sipri.org/databases/embargoes (Last accessed on 1 Dec. 2016)
95 UN Doc. A/RES/59/90, Prevention of the Illicit Transfer and Unauthorized Access to and Use of ManPortable Air Defence Systems, 3 Dec. 2004; UN Doc. A/RES/60/77, Prevention of the Illicit Transfer andUnauthorized Access to and Use of Man-Portable Air Defence Systems, 8 Dec. 2005.
96 Elements for Export Controls of Man-Portable Air Defense Systems (MANPADS), 1 Dec. 2000. Amended
versions were adopted on 12 Dec. 2003 and at the Plenary meetings held between 4 and 6 Dec. 2007.
97 Enhance Transport Security and Control of Man-Portable Air Defence Systems (MANPADS): A G8 Action
Plan, 2 June 2003.
98 2004/AMM/035, APEC Guidelines on Controls and Security of Man-Portable Air Defense Systems(MANPADS), 17-18 Nov. 2004.
99 FSC.DEC/3/04, Decision No. 3/04, OSCE Principles for Export Controls of Man-Portable Air Defence
Systems (MANPADS), 26 May 2004; FSC.DEC/5/08, Decision No. 5/08, Updating the OSCE Principles for.
Export Controls of Man-Portable Air Defence Systems, 26 May 2008.

－ 13 －TAMARA ENOMOTO
particular weapons to non-state actors; they do not relate to arms transfers to non-state
actors in a general sense. Therefore, the scope of weapons and/or non-state actors includedin these agreements is substantially limited. Nevertheless, generally speaking, they wereagreed upon against a backdrop of increasing concern over the atrocities and disturbancesbrought about by non-state actors in the age of ‘new wars’.
Meanwhile, some regional agreements express the will to develop an international
consensus on the need to prohibit non-state-sanctioned arms transfers to non-state actors.
For instance, the EU joint action adopted in 1998 and then updated in 2002 stated that the
EU would aim to build consensus in the relevant international forums, and in regional
contexts as appropriate, for the realization of a commitment by exporting countries tosupply small arms and light weapons only to governments in accordance with appropriate
international and regional restrictive arms export criteria.100 Moreover, the ministers of themember states of the Organisation of African Unity (OAU) agreed in 2000 that they would
strongly appeal to the wider international community and, in particular, to arms suppliercountries to accept that trade in small arms should be limited to governments and tradersthat are authorized, registered, and licensed.101
In addition, the Inter-American Convention in 1997,102 the Nairobi protocol adopted byeast and central African states in 2004,103 and a document agreed upon at the OSCE in
2000104 include clauses that require participating states to ensure the permission of theimporting state before authorizing arms transfers, whether the recipient is a state actor ornot.
A few other regional agreements, such as the ECOWAS Convention adopted in 2006105
and the Central African Convention adopted in 2010,106 more clearly oblige their states
parties not to transfer arms to non-state actors. For instance, Article 3 (2) of the ECOWAS
Convention states that ‘Member States shall ban, without exception, transfers of small arms
and light weapons to Non-State Actors that are not explicitly authorised by the importing
Member’.107 Article 4 of the Central African Convention specifies that ‘States Parties shallprohibit any transfer of small arms and light weapons, their ammunition and all parts andcomponents that can be used for their manufacture, repair and assembly to, through andfrom their respective territories to non-State armed groups’.108
During the negotiation of the United Nations Firearms Protocol adopted in March 2001,109
100 1999/34/CFSP, Joint Action of 17 Dec. 1998 adopted by the council on the basis of Article J.3 of the Treaty
on European Union on the European Union’s Contribution to Combating the Destabilising Accumulation andSpread of Small Arms and Light Weapons; 2002/589/CFSP, Council Joint Action of 12 July 2002 on theEuropean Union’s Contribution to Combating the Destabilising Accumulation and Spread of Small Arms andLight Weapons and Repealing Joint Action 1999/34/CFSP.
101 Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Traffickingof Small Arms and Light Weapons, 1 Dec. 2000.
102 Inter-American Convention against the Illicit Manufacturing and Trafficking in Firearms, Ammunition,
Explosives and other Related Materials, 14 Nov. 1997.
103 The Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the
Great Lakes Region and the Horn of Africa, 21 April 2004.
104 FSC.DOC/1/00/Rev.1, OSCE Document on Small Arms and Light Weapons, 24 Nov. 2000.
105 ECOWAS Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials,
14 June 2006.
106 Central African Convention for the Control of Small Arms and Light Weapons, Their Ammunition, Parts
and Components that Can be Used for Their Manufacture, Repair and Assembly, 30 April 2010. It has not enteredinto force as of 1 Dec. 2016.
107 It defines non-state actors in Article 1 (10).
108 Its scope for non-state actors is limited to a ‘non-State armed group’, which is defined in Article 2 (n).
109 UN Doc. A/RES/55/255, Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their
Parts and Components and Ammunition, Supplementing the United Nations Convention against Transnational－ 14 －

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
some states, especially African states, argued that the protocol provision should be applied
to arms transfers to non-state actors, while others sought an exemption for such transfers.110
Article 10 (2) of the adopted text stated that before issuing export licences or authorizations
for shipments of firearms, their parts and components, and ammunition, each state party
should verify that ‘the importing States have issued import licences or authorizations’. 111
Yet Article 4 (2) of the protocol included compromise language proposed by the UnitedStates: ‘This Protocol shall not apply to state-to-state transactions or to state transfers incases where the application of the Protocol would prejudice the right of a State Party totake action in the interest of national security consistent with the Charter of the United
Nations’.112 While exporting arms to non-state actors without explicit permission of theimporting state would be contrary to Article 10 (2), Article 4 (2) in effect allows states
parties to determine for themselves whether the protocol should be applied to a specifictransfer from a state to a non-state actor.113
Arms transfers to non-state actors became a thorny issue once again during the negotiationof the United Nations Small Arms Programme of Action, which was adopted in July 2001.
Negotiating states diverged sharply in their views on whether non-state-sanctioned arms
transfers to non-state actors should be prohibited in this document. Many states, especially
African states, supported the blanket-ban approach, while the United States was firmly
against the ban. 114 In the end, the issue was not clearly addressed in the adopted
programme.115 During the review conference of the Programme of Action in 2006, the issue
was raised again but never settled.116
The language of the 2002 Wassenaar Arrangement Best Practice Guidelines for Exports ofSmall Arms and Light Weapons (SALW)117 was vague but indicated a more permissive
approach than a blanket-ban. It stated that ‘participating States will take especial care when
considering exports of SALW other than to governments or their authorized agents’.118 Thisimplied that such a transfer might be permitted after it was considered with ‘especial care’.
The final negotiation stages of the ATT between 2010 and 2013 thus unfolded amid
competing approaches regarding arms transfers to non-state actors. During the negotiations,many southern states, especially African states, supported, as usual, the blanket-ban
approach.119 The United States was against the blanket-ban approach, just as it had been
before.120 But European states and the NGOs and academics involved in the negotiation
tended to avoid furthering this issue. As previously mentioned, European states had
supported the blanket-ban approach in the 1990s and early 2000s. But in the early 2010s,
Organized Crime, 31 May 2001.
110 McDonald, ‘Strengthening’, p. 239.
111 UN Doc. A/RES/55/255, Article 10 (2).
112 Ibid., Article 4 (2).
113 McDonald, ‘Strengthening’, p. 240.
114 Garcia, ‘Arms transfers’, pp. 156-7; Holtom, ‘Prohibiting’, pp. 7-8.
115 UN Doc. A/CONF.192/15, Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small
Arms and Light Weapons in All Its Aspects.
116 Holtom, ‘Prohibiting’, p. 9; McDonald, Hassan, and Stevenson, ‘Back to basics’, pp. 123-4.
117 Best Practice Guidelines for Exports of Small Arms and Light Weapons, 11-12 Dec. 2002.
118 Ibid.
119 According to Holtom, Brazil, China, Côte d’Ivoire, Cuba, India, Indonesia, Liberia, Mali, Nigeria, Turkey,
and Zimbabwe supported the blanket ban. Statements from the African Group (a group of 54 African states thatare UN Members), CARICOM, ECOWAS, and a joint statement from Argentina, Chile, Colombia, Guatemala,Jamaica, Mexico, Peru, Trinidad and Tobago, and Uruguay were also in favour of the blanket ban. See Holtom,‘Prohibiting’, pp. 4-5. The common position agreed at the African Union also called for the blanket ban. See
African Union, African Union Common Position on an Arms Trade Treaty, 2011, para. 19.
120 Holtom, ‘Prohibiting’, p. 6.

－ 15 －TAMARA ENOMOTO
some European states, such as France and the United Kingdom, were willing to consider
engaging in transfers of arms, security equipment, and other related materials to opposition
movements in the Middle East and North Africa (MENA) region following the upsurge of
the Arab Spring.121 Some of these states thus preferred to keep their options open,122 while
many other states seemed to avoid discussing the issue all together, possibly fearing delay
or breakdown in the ATT negotiations.
In the end, the adopted text of the ATT does not include an explicit reference to arms
transfers to non-state actors. 123 It simply stipulates that all arms transfers, with the
exceptions clarified in Article 2 (3),124 are subject to the common criteria enshrined in thetreaty. In other words, transferring arms to non-state actors without the permission ofimporting states is not clearly prohibited in the treaty. While one may claim that arming
non-state actors without the consent of the importing state constitutes a violation of theCharter of the United Nations and is thus prohibited by Article 6 (2) of the ATT,125 a moreprevalent interpretation seems to be that the states parties of the ATT have the obligation toassess the potential risk of arms transfers against the criteria on a case-by-case basis,
whether the recipient of the arms is a state actor or not.126
As such, some states parties of the ATT may assess arms transfers to non-state actors on acase-by-case basis against the criteria enshrined in the ATT and may authorize transfers
without the permission of the importing state when they deem that the risk of misuse is not‘overriding’.127 However, since the criteria approach leaves the decision to transfer or deny
the transfer of arms to the discretion of each state, the decision regarding whether totransfer arms to a certain actor may differ between one state party of the ATT and another.
In a sense, the criteria approach is not based on the premise that certain actors are capableof defining the collective good of others or of the international community, which was theassumption embedded in the Brussels Act of 1890.128 Instead, it is based on the idea thatany actor has a lesser or greater degree of risk of falling into dysfunction, irrationality, and
121 Poitevin, ‘European Union’, pp. 17-8. It should be noted that some arms deliveries, such as those supplied
by France to the National Interim Council (NIC) of Libya, took place after the exporting state recognized the
opposition movement as the legitimate government of the importing state, although recognition of an opposition
movement when it does not have effective control of most of the country can be of dubious legality. The author
thanks Nicholas Marsh for pointing this out. See Henderson, ‘The provision’, pp. 665-8; Holtom, ‘Prohibiting’,
pp. 13-5.
122 Clapham, ‘Weapons’, p. 164.
123 Article 11 of the ATT stipulates that the ‘exporting State Party shall seek to prevent the diversion of thetransfer of conventional arms covered under Article 2 (1) through its national control system’. Yet, the term
‘diversion’ is not clearly defined in the treaty. See Olabuenaga and Gramizzi, ‘Article 11 diversion’, p. 194;
Parker, ‘Article 11. diversion’, pp. 348-50. It is generally understood that ‘if a state deliberately authorizes thetransfer of arms to an illicit end user (such as an armed group operating in another state), this would notconstitute “diversion’’’. Parker, ‘Article 11. diversion’, p. 349.
124 Article 2 (3) of the ATT says, ‘This Treaty shall not apply to the international movement of conventionalarms by, or on behalf of, a State Party for its use provided that the conventional arms remain under that State
Party’s ownership’.
125 Article 6 (2) of the ATT states, ‘A State Party shall not authorize any transfer of conventional arms covered
under Article 2 (1) or of items covered under Article 3 or Article 4, if the transfer would violate its relevantinternational obligations under international agreements to which it is a Party, in particular those relating to thetransfer of, or illicit trafficking in, conventional arms’. Clapham argues that arming non-state actors may
constitute a violation of the UN Charter and thus may come within the purview of Article 6 (2). See Clapham,‘Article 6. Prohibitions’, pp. 195-9.
126 Casey-Maslen, Giacca, and Vestner, The Arms Trade Treaty (2013), p. 9; Da Silva and Nevil, ‘Article 6
Prohibitions’, pp. 90, 96-7; Henderson, ‘The provision’; ICRC, Arms transfer decisions, p. 11.
127 The term ‘overriding’ was used in Article 7 (3). For the implication of this term, see Casey-Maslen, ‘Article
7’, pp. 274-6.
128 Enomoto, ‘Reisen shuuketsugo’.

－ 16 －

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
immorality, and thus requires an external risk assessment.129 At the same time, no actor isassumed to be capable of providing any universal judgement as to the level of risk of a
specific actor or of defining the collective good on behalf of the potentially affected
population or of the international community.130 As a result, some states parties of the ATT
may conclude that the risk of arms being used to commit or facilitate serious violations ofinternational humanitarian law is ‘overriding’ should they authorize certain arms to acertain non-state actor at a certain time, but other states parties may think that the risk is
not sufficiently ‘overriding’ to reject the licence for a transfer.

VI
After reviewing the history of the policy debates on arms transfers to non-state actors, it
becomes clear that the ATT’s language on this matter is characteristic of the present era.
Since the emergence of the sovereign-state system until the interwar period, policy makers
tended to frame ‘the problem’ of arms transfers to non-state actors as the inadmissibility ofarms transfers to people who were regarded as unable and unqualified to further thecollective social good. The framing was premised on the idea that people had to fulfil the‘standard of civilization’ to be recognized as a sovereign state. In the late nineteenth
century, arms transfers between states were rarely problematized except in times of war,and the interwar initiatives to regulate such transfers failed in part due to the lack ofsupport by smaller states, which saw them as infringements to their sovereignty andsecurity. During the Cold War period, the dominant argument against arms transfers to nonstate actors, articulated in the ICJ’s judgment on military and paramilitary activities in andagainst Nicaragua, was based on the conception that the principles of sovereign equality
and non-intervention should be respected for all states regardless of their empiricalcapabilities as organized political systems. At the same time, while western states proposedinternational registration and publicity measures for arms transfers between states at theUNGA, this initiative met fierce criticism by importing states, which saw them as an
instrument for exporting states to illegitimately intervene in the internal affairs of importingstates.
Since the 1990s, as much as the atrocities and disturbances caused by non-state actors
concerned policy circles, the ability and will of states to protect their own populations andto pursue the collective good came under increasing suspicion. Governments, NGOs, andacademics, especially those in the global north, sought to develop the common criteria
against which exporting states should assess the potential risks of misuse before authorizingarms transfers to other states. As their efforts culminated in the negotiation of the ATT, theability and will of states, especially states in the MENA region, to provide security to andprotect the human rights of their own populations were cast in serious doubt. The idea thatthe international community could provide military assistance to peoples fighting against
oppressive regimes also gathered some support and sympathy, especially from states,
NGOs, academics, and the media in Europe and North America. In a sense, the language of
the ATT was developed against the background in which the right to Westphaliansovereignty and international legal sovereignty were increasingly seen as contingent on astate’s ability and will to protect its own population, and the primacy of the principle ofnon-intervention was severely eroded.
129 Ibid.
130 Ibid.

－ 17 －TAMARA ENOMOTO
However, some of the non-state parties of the ATT, such as the United States, are likely to
decide whether to authorize arms transfers to non-state actors based on their own rules andregulations. In addition, the ATT’s inability to address the issue of arms transfers to nonstate actors has been criticized by many of those states that abstained or voted against the
adoption of the ATT, as well as by some of the states that voted for it, including African
and Caribbean states.131 Such states may prohibit the export of arms to non-state actors
without the explicit permission of the importing state, although their actual practices may
not necessarily conform to the principle that they claim to espouse.132 Some prominent
individuals have also voiced doubts about the approach taken in the ATT. Ben Emmerson,
United Nations Special Rapporteur on human rights and countering terrorism, insisted at
the time that the ATT entered into force that ‘further consideration on the issue ofprohibiting the sale of weapons to non-state entities is needed’.133 Therefore, it is difficult
to conclude that the criteria approach embodies the currently established international
norms. In the longer term, the ways in which people frame ‘the problem’ of arms transfers
to non-state actors may change further, just as it has changed substantially from theemergence of the sovereign-state system to present.
References
Anderson, D. G., ‘British rearmament and the “merchants of death”: the 1935-36 royal commission on the
manufacture of and trade in armaments’, Journal of Contemporary History, 29:1 (1994), pp. 5-37.
Anderson, M., Do no harm: supporting local capacities for peace through aid (Cambridge, 1996).
Anthony, I., ‘The Ukraine crisis: from popular protest to major conflict’, in J. Batho, A. Mash, K. Millett,and A. Sailsbury, eds., SIPRI Yearbook 2015: armaments, disarmament and international security(Oxford, 2015), pp. 57-67.
Atmore, A., Chirenje J. M., and Mudenge, S.I., ‘Firearms in southcentral Africa’, Journal of African
History, 12:4 (1971), pp. 545-56.
Bain, W., Between anarchy and society: trusteeship and the obligations of power (Oxford, 2003).
Barker, J.R.V., The tournament in England, 1100-1400 (Woodbridge, 1986).
Beachey, R. W., ‘The arms trade in East Africa in the late nineteenth century’, Journal of African History,
3:3 (1962), pp. 451-67.
Berlioux, E. F., Slave trade in Africa in 1872: principally carried on for the supply of Turkey, Egypt,
Persia and Zanzibar (1872).
Biting the Bullet Project, Developing international norms to restrict SALW transfers to non-state actors(2006).
Busby, R., Reagan and the Iran-Contra affair: the politics of Presidential recovery (New York, 1999).
Canada, Ministry of Foreign Affairs, A proposed global convention prohibiting the international transferof military small arms and light weapons to non-state actors, discussion paper (Ottawa, 1998)
Capie, D., Armed groups, weapons availability and misuse: an overview of the issues and options foraction, Background paper for the meeting organised by the Centre for Humanitarian Dialogue inBamako (Mali), 25 May 2004 (Geneva, 2004)
131 UN Doc. GA/11354, United Nations Department of Public Information (UNDPI) press release.
Overwhelming majority of states in General Assembly say ‘yes’ to Arms Trade Treaty to stave off irresponsible
transfers that perpetuate conflict, human suffering: Adopted by vote of 154 in favour to 3 against, ‘robust andactionable’ text requires arms exporters to assess possible misuse, sixty-seventh General Assembly, plenary, 71st
& 72nd meetings (AM & PM), 2 April 2013.
132 For instance, Russia was one of the states which criticized the ATT for its failure to explicitly prohibit nonstate sanctioned arms transfers to non-state actors at the time the treaty was adopted on 2 April 2013. See Ibid.
However, the country was reported to have transferred arms to Ukrainian opposition forces, the Donetsk People’s
Republic, in the following year. See Anthony, ‘The Ukraine crisis’, p. 59.
133 The Office of the United Nations High Commissioner for Human Rights, Arms Trade Treaty: UN humanrights experts urge all States to ratify it and consider disarmament, (Geneva, 23 Dec. 2014) http://www.ohchr.
org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15455&LangID=E#sthash.0tgl2RfZ.dpuf (Last accessedon 1 Dec. 2016)－ 18 －

CONTROLLING ARMS TRANSFERS TO NON-STATE ACTORS
Casati, G., Ten years in Equatoria and the return with Emin Pasha. Volume 2 (1891).
Casey-Maslen, S., ‘Article 7. export and export assessment’, in A. Clapham, S. Casey-Maslen, G. Giacca,and S. Parker, eds., The Arms Trade Treaty: a commentary (Oxford, 2016), pp. 244-85.
Catrina, C., Arms transfers and dependence (1988).
Chew, E., Arming the periphery: the arms trade in the Indian Ocean during the age of global empire(Basingstoke, 2012).
Clapham, ‘Weapons and armed non-state actors’, in S. Casey-Maslen, ed., Weapons under international
human rights law (Cambridge, 2014), pp. 163-96.
Clapham, A., ‘Article 6. prohibitions’, in A. Clapham, S. Casey-Maslen, G. Giacca, and S. Parker, eds., The
Arms Trade Treaty: a commentary (Oxford, 2016), pp. 177-243.
Clarke, R. F., Cardinal Lavigerie and the African slave trade (1889).
Collier, P., Wars, guns, and votes: democracy in dangerous places (New York, 2009).
Cortright, D., Peace: a history of movements and ideas (Cambridge, 2008).
Casey-Maslen, S., Giacca, G., and Vestner, T., The Arms Trade Treaty (2013) (Geneva, 2013).
Da Silva, C. and Nevil, P., ‘Article 6 prohibitions’, in Da Silva, C. and Wood, B. eds., Weapons andinternational law: the Arms Trade Treaty (Brussel, 2015), pp. 88-115.
Daniel, E. L., The history of Iran (Westport, 2001).
Enomoto, T., ‘Reisen shuuketsugo no kaihatsu-anzenhoshou gensetsu ni okeru ningenzou: kogatabuki
kisei-tsuujyou heiki iten kisei no jirei kara’, (unpub. Ph.D. thesis, Univ. of Tokyo, 2015).
Fujiki, H., Katanagari: buki wo fuuin shita minshu (Tokyo, 2015).
Garcia, D., ‘Arms transfers beyond the state-to-state realm’, International Studies Perspectives, 10:2
(2009), pp. 151-69.
Gillespie, A., A history of the laws of war: Volume 3, the customs and laws of war with regards to arms
control (Oxford and Portland, 2011).
Garcia-Mora, M. R., ‘International law and the law of hostile military expeditions’, Fordham Law Review,
27:3 (1958), pp. 309-31.
Guy, J. J. (1971). ‘A note on firearms in the Zulu Kingdom with special reference to the Anglo-Zulu war,
1879’, Journal of African History, 12:4 (1971), pp. 557-70.
Harkavy, R. E., The arms trade and international systems (Cambridge, 1975).
Henderson, C., ‘The provision of arms and “non-lethal” assistance to governmental and opposition forces’,
University of New South Wales Law Journal 36:2 (2013), pp. 642-81.
Heyn, U., ‘Medieval arms control movements and the Western quest for peace’, in R. D. Burns, ed,
Encyclopedia of arms control and disarmament, vol. II (New York, 1993), pp. 563-79.
Heyn, U., Peacemaking in medieval Europe: a historical & bibliographical guide (Claremont, 1997).
Holtom, P., ‘Prohibiting arms transfers to non-state actors and the Arms Trade Treaty’, UNIDIR resources(2012).
ICRC (International Committee of the Red Cross), Arms transfer decisions: applying international
humanitarian law criteria — a practical guide (Geneva, 2016).
Jackson, R. H., Quasi-states: sovereignty, international relations and the Third World (Cambridge, 1998).
Joyner, C., International law in the 21st century: rules for global governance (Lanham, 2005).
Kaeuper, R. W., War, justice, and public order: England and France in the later Middle Ages (Oxford,
1988).
Kaldor, M., New and old wars: organized violence in a global era (Stanford, 1999).
Krasner, S., ‘Rethinking the sovereign state model’, in M. Cox, T. Dunne, and K. Booth, Empires, systems
and states: great transformations in international politics (Cambridge, 2001).
Krasner, S., Power, the state and sovereignty: essays on international relations (2009).
Krause, K., Arms and the state: patterns of military production and trade (Cambridge, 1992).
Krause, K., ‘Controlling the arms trade since 1945’, in R. D. Burns, ed, Encyclopedia of arms control anddisarmament, vol. II (New York, 1993), pp. 1021-1039.
Krause, K., and MacDonald, M. K., ‘Regulating arms sales through World War II’, in R. D. Burns, ed,
Encyclopedia of arms control and disarmament, vol. II (New York, 1993), pp. 707-24.
Kurimoto, E., Mikai no sensou, gendai no sensou: gendaijinruigaku no shatei (Tokyo, 1999).
Louis, R. W., ‘Sir Percy Anderson’s grand African strategy, 1883-1896’, English Historical Review, 81:319(1966), pp. 292-314.
McDonald, G., ‘Strengthening controls: small arms measures’, in P. Batchelor and K. Krause eds., Smallarms survey 2002: counting the human cost (Oxford, 2002), pp. 234-77.
McDonald G., Hassan S., and Stevenson, C., ‘Back to basics: transfer controls in global perspective’, in E.

－ 19 －TAMARA ENOMOTO
G. Berman, K. Krause, E. LeBrun, and G. McDonald, eds., Small arms survey 2007: guns and the city
(Cambridge, 2007), pp. 117-43.
Matthews, J., ‘Free trade and the Congo Basin Treaties’, South African Journal of Economics, 27:4 (1959),
pp. 293-300.
Miers, S., Britain and the ending of the slave trade (1975).
Muni, S. D., ‘Third World arms control: role of the Non-Allied Movement’, in T. Ohlson, ed, Arms transfer
limitations and Third World security (Oxford, 1988), pp. 191-201.
Olabuenaga, P. A. A., and Gramizzi, C., ‘Article 11 diversion’, in Da Silva, C. and Wood, B. eds., Weapons
and international law: the Arms Trade Treaty (Brussel, 2015), pp. 88-115.
Onozuka, T., ‘Heiki ha ikani youini hiromattanoka’, in K. Yokoi and T. Onozuka, eds., Gunkaku to bukiitenno sekaishi: heiki ha naze youi ni hiromattanoka (Tokyo, 2012), pp. 1-21.
Parker, ‘Article 11. diversion’, in A. Clapham, S. Casey-Maslen, G. Giacca, and S. Parker, eds., The Arms
Trade Treaty: a commentary (Oxford, 2016), pp. 342-65.
Pasha, R. G., Seven years in the Soudan: being a record of explorations, adventures, and campaigns
against the Arab slave trade (1892).
Poitevin, C., European Union initiatives to control small arms and light weapons: towards a morecoordinated approach, Non-Proliferation Papers, 33 (2013).
Shultz, R. H., The Soviet Union and revolutionary warfare: principles, practices, and regional
comparisons (Stanford, 1988),
SIPRI (Stockholm International Peace Research Institute), The arms trade with the Third World(Stockholm, 1971).
Smith, C., ‘Weapon transfers to non-state armed groups’, Disarmament Forum, 1 (2008), pp. 45-51.
Stavrianakis, A., Xinyu, L. and Binxin, Z. Arms and the responsibility to protect: Western and Chinese
involvement in Libya (2013).
Stone, D., ‘Imperialism and sovereignty: the League of Nations’ drive to control the global arms trade’,
Journal of Contemporary History, 35:2 (2000), pp. 213-30.
Takahashi, H., Buki, jyuujika to sengoku nihon: iezusu-kai senkyoushi to ‘tainichi buryoku seifuku keikaku’no shinsou (Tokyo, 2012).
Takei, K., Teppou wo tebanasanakatta hyakushoutachi: katanagari kara bakumatsu made (Tokyo, 2010).
Wulf, H., ‘United Nations deliberations on the arms trade’, in I. Anthony ed., Arms export regulations(Oxford and New York, 1991), pp. 228-37.
Yokoi, K., Daiei teikoku no ‘shi no shounin’ (Tokyo, 1997).
Yokoyama, Y., ‘Chugoku ni okeru bukikinyukyoutei no haki to heikidoumei no hatan’, Journal of Military
History, 52:2 (2016), pp. 4-27.
Zeray Y., The arms trade and international law (Oxford, 2007).

－ 20 －