China Would Violate the Arms Trade Treaty If It Sends Weapons to Russia for Use in Ukraine: Part II

[Dr Tomas Hamilton (@tomhamilton) is a Researcher at the University of Amsterdam and Managing Editor of the VICI-funded project ‘Rethinking the Outer Limits of Secondary Liability for International Crimes and Serious Human Rights Violations’.]

China’s Obligations Under Article 7 of the ATT Not to Transfer Arms to Russia

In the event that assistance does not fall into the above mandatory prohibitions of Article 6, for instance if Russia provides assurances that the military aid is for use by its regular domestic police forces, China would still be required to conduct assessments under the ATT of the risks associated with the exported weapons. Article 7 provides, inter alia, (my emphasis):

7. 1. If the export is not prohibited under Article 6, each exporting State Party […] shall […] assess the potential that the conventional arms or items:

(a)  would contribute to or undermine peace and security;

(b)  could be used to:

(i)  commit or facilitate a serious violation of international humanitarian law;

(ii)  commit or facilitate a serious violation of international human rights law;
[…]

3. If, after conducting this assessment and considering available mitigating measures, the exporting State Party determines that there is an overriding risk of any of the negative consequences in paragraph 1, the exporting State Party shall not authorize the export.

4. The exporting State Party, in making this assessment, shall take into account the risk of the [conventional arms, ammunition, parts and components] being used to commit or facilitate serious acts of gender- based violence or serious acts of violence against women and children.

Under the first of these sub-provisions, if China has information that a shipment of arms to Russia is bound for the war in Ukraine, there would be an overriding risk that that arms would contribute to undermining international peace and security, since they would help Russia in an ongoing violation of jus ad bellum. The leading commentaries on the ATT recognise that the scope of Article 7(1)(a) encompasses undermining peace and security by providing arms to a state likely to be engaged in future violations of jus ad bellum (Clapham et al., 7.34), including where this constitutes a crime of aggression (Da Silva and Wood, p.155). Importantly, the peace and security provisions of Article 7(1)(a) are ‘international’ in character, so they do not provide a ‘loophole’ for a bad faith interpretation of the provision, whereby a State Party could interpret the terms as relating to ‘national security’ and therefore justify exports on spurious grounds of upholding an aggressive State’s purported national security concerns.

Any arms that China assesses as bound for use in Ukraine would contribute to undermining peace and security and violate Article 7(1)(a). Any such arms transfers might additionally violate Article 7(1)(b) if used in serious violations of international humanitarian law or international human rights law under Article 7(1)(b),or serious acts of violence against women and children under Article 7(4). Due to the difficulties of linking specific shipments of weapons to specific anticipated incidents in Ukraine, violations under Article 7(1)(b) and Article 7(4) are likely to be harder to establish during the risk assessment than the broader ‘undermining peace and security’ prohibition in Article 7(1)(a). 

Article 7 requires an assessment of ‘overriding risk’ (which has been equated with the ‘clear risk’ standard in EU arms control laws – see Wood et al, p. 169) of the ‘potential’ usage of the arms to ‘contribute’ to undermining peace and security. In the circumstances of Ukraine, the relevant assessment for China would simply be whether there is an overriding risk that the items sent to Russia are going to be used in the war. However, following Clapham et al. (7.31), the standard could be even lower – just the result of the mere delivery of the arms to Russia, even if not used in Ukraine, could be understood as sufficient to ‘contribute’ in some way to Russia’s actions in undermining global security. In other words, any arms sent to Russia that have a knock-on supporting effect on its military capacities to attack Ukraine could qualify. This would be a broad reading, however, and could be undone by Russia demonstrating that the arms did nothing more than address regular domestic policing needs, for instance (of course this does not rule-out that those regular domestic policing needs could be a basis for ATT prohibition). In any case, the threshold level for information about Russia’s intended use of the weapons that would trigger an export ban under Article 7(3) certainly appears to be lower than the standard under Article 6(2) of awareness that the transfer would violate China’s relevant international obligations under the UN Charter.

It is therefore Article 7(1)(a) of the ATT that provides the important minimum threshold: China must not authorise any shipment of weapons to Russia where it identifies an overriding risk of their use in the war in Ukraine.

Information Available to China about Russia’s Intended Use of the Weapons

A ‘hard case’ borderline scenario of prohibition under the ATT could arise if China supplies weapons based on assurances from Russia that they will not be used in Ukraine, but are instead intended for Russia’s regular and legitimate military and security needs.

In this situation, an assessment would still be required under Article 7(1)(a) of the overriding risk that the weapons would, in spite of and contrary to Russian assurances, be used in the war in Ukraine and therefore contribute to undermining peace and security. Such a scenario would then engage China in determinations under Article 7(2) as to whether it could take measures to mitigate the risk of the prohibited use in Ukraine, for instance by securing an undertaking from Russia that the items will not be used for purposes other than the declared regular usage. In this regard, it is salient that these provisions were included in the ATT primarily in relation to avoiding the risks of diversion from intended end-users to other recipients, not to mitigating unlawful uses by a purchasing State. It is hard to see how China could realistically mitigate these risks bona fide, or obtain any binding commitment that would prevent Russia from using the weapons in Ukraine mala fides.

At the present time, in order for any military aid requested by Russia from China to be permissible under the ATT, it would need to be accompanied by information substantiating that the weapons are not for use in Ukraine (of course this would not exclude possibilities of wrongful use against Russian civilians’ human rights. There is an obligation under Article 8(1) according to which States party to the ATT that are importing arms, must take measures to ensure that ‘appropriate and relevant information’ is provided to the exporting State Party to assist in the export assessment under Article 7. However, since Russia is not an ATT State Party (neither is it a signatory), Article 8(1) does not apply and it is under no treaty obligation to provide this information, although of course doing so could facilitate China in meeting its obligations under the ATT. 

The bottom-line here, however, is that if Russia is seeking military aid from China at the present time, it is likely for use in Ukraine. If the reports cited by US intelligence are accurate, Russia has requested military aid expressly for use to attack Ukraine, removing any possibility of risk mitigation, and making the arms exports undoubtedly unlawful under Article 7(1).

In sum then, the ATT does not appear to prevent China from continuing to supply weapons to Russia for its regular and legitimate military and security needs. At least under the ATT, the illegal invasion of Ukraine does not per se mean that States must suspend regular support for Russia, for instance for its police and domestic security apparatus (of course, irrespective of the Ukraine situation there may be rights violations by Russian authorities that could trigger an ATT prohibition). Indeed, the Preamble to the ATT recognizes ‘the legitimate political, security, economic and commercial interests of States in the international trade in conventional arms’. However, as soon as China detects the potential overriding risk for an exported weapon to be used in the invasion of Ukraine (this need not rise to the level of ‘knowledge’), the ATT absolutely prohibits China from authorising such exports. This is a low bar, and would seem to apply to all of the rumoured conventional arms sales to Russia at present, since any such weapons raise an overriding risk of possible use in Ukraine.

The ATT Offers a Lex Specialis for Chinese Arms Exports to Russia

Following this detailed analysis of Articles 6 and 7, it can be seen that the ATT provides a more specific set of international law obligations to clarify the conditions in which a State must not transfer weapons to another State, than under general international law. 

These specific treaty law prohibitions of the ATT exist in the context of several other relevant prohibitions under international law. Chinese military aid to Russia would almost certainly provide a basis for China’s responsibility under international law in accordance with Articles 16 and 41(2) of the ASR, as well as the prohibitions in Common Article 1 of the Geneva Conventions, as Oona Hathaway and Ryan Goodman argue on their Just Security blog. There are further questions as to whether China would violate the principle of neutrality, gain the status of a belligerent party and be subject to countermeasures. 

Under international criminal law, the CEOs of China’s arms manufacturing corporations and Chinese State officials with authority over arms exports would need to consider the risk of individual responsibility under doctrines of aiding and abetting. Tom Dannenbaum has already pointed out the potential complicity of Russian industrialists in international crimes; the prospect of external military assistance to Russia could broaden the scope of individual complicity considerably.

There is no relevant arms embargo in place. Unlike in many armed conflicts, Chinese exports to Russia are not subject to any UN Security Council arms embargo, and the EU arms embargo on Russia since 2014 does not apply to China. Arguably, the ATT’s prohibitions take on a heightened importance in the situation where a State Party is considering the types of risks associated with arms exports that would normally for the basis for a UN Security Council embargo to be imposed under Chapter VII of the UN Charter but for an inevitable veto.

In general, arms control laws have received very little attention in the commentary on Ukraine since the invasion of 24 February. I would argue that arms control laws are highly relevant, both as a matter of international law and as a tool for legal diplomacy, to hopefully dissuade China from sending weapons to Russia for use in Ukraine where this is deemed unlawful. I would also argue, as I am developing for a forthcoming OUP monograph The Arms Trade and International Criminal Law, that the prohibitions in Article 6(3) and 7 not only govern national export licensing requirements, they also provide a lex specialis on the prohibition of arms exports that may be relevant to determining the scope of responsibility in accordance with the rules of State responsibility and international criminal law. 

Conclusions About the Relevance of ATT Violations for China

Beyond international law, the serious ramifications if China decides to assist Russia are being described in stark terms: ‘China would in effect be entering a proxy war with the US and Nato nations that are backing Ukraine’, a decision that could ‘spell the end for the globalised economic system that has fuelled China’s extraordinary rise over the past 40 years.’

If pushed to recognise that supporting Russia would make hypocrisy of its ratification of the ATT and proclaimed commitment to global arms export norms, China might simply point to the US failure to ratify. But putting aside the whataboutism of US non-ratification of the ATT, China would still have violated its treaty obligations. In this context, China’s recent affirmations of ‘resolve and sincerity’ in maintaining international arms control norms provides an additional legal argument in the diplomatic toolkit, which could contribute to persuading China to resist the economic pull of Russia’s growing need for external sources of weaponry.