Small Arms and Corporate Social Responsibility - Project

workingppaappeerrSmall Arms and CorporateSocial Responsibility:Emerging InternationalNorms and a Program for Advocacy

By Tracy London JD, MSW

Prepared for the Small Arms Working Group of theCanadian Peacebuilding Coordinating Committee insupport of the Peace-building and Human Security:Development of Policy Capacity of the VoluntarySector Project.

05-1

p r o j e c t p l o u g h s h a r e s

docum

ent ddee

ttrraavv

aaiill

Armes légères etresponsabilité sociale des entreprises : Normesinternationales émergenteset Programme desensibilisationpar Tracy London JD, MSW

Préparé par le Groupe de travail sur les armeslégères du Comité coordonnateur canadien pour laconsolidation de la paix, en appui à Peace-buildingand Human Security: Development of Policy Capacityof the Voluntary Sector Project.

05-1

project ploughshares

About the Author Tracy London JD, MSW is the former Director of Development and Policy at Oceans Blue Foundation (Canada) and a member of Amnesty International Canada. In 2005 she plans to begin a doctoral thesis in which she will more fully articulate and analyze the law of arms control and international human rights as it pertains to corporate responsibility. About this Paper This paper is one of three that has been commissioned by the Small Arms Working Group of the Canadian Peacebuilding Coordinating Committee (CPCC) to add to informed discussion and debate about small arms and to strengthen Canada’s small arms policy so that both government and civil society can contribute more effectively to the UN process on this issue. The Peace-building and Human Security: Development of Policy Capacity of the Voluntary Sector Project is a two-year project funded by the Canadian International Development Agency (CIDA) through the Voluntary Sector Initiative (www.vsi-isbc.ca), and is designed to strengthen the policy capacity and dialogue among civil society groups and federal government departments in three emerging and interrelated peacebuilding and human security policy areas – small arms, children and conflict, and gender and peacebuilding. Project Ploughshares is coordinating the small arms policy development section of this project through the Small Arms Working Group while the CPCC Secretariat coordinates the other two policy areas through its Children and Armed Conflict Working Group and Gender and Peacebuilding Working Group respectively.

The Canadian Peacebuilding Coordinating Committee (CPCC) The CPCC is a network of Canadian non-governmental organizations and institutions, academics and other individuals from a wide range of sectors engaged in facilitating dialogue between civil society and the Canadian government for the development of peacebuilding policy and programming. The Small Arms Working Group (SAWG) The SAWG seeks to engage the Canadian peace, disarmament, human rights and development NGO communities in the development and promotion of national and international policies and measures to reverse the diffusion and misuse of small arms and light weapons. Canadian Peacebuilding Coordinating Committee (CPCC) 1 Nicholas Street, #1216, Ottawa, Ontario KIN 7B7, Canada (613) 241-3446 Fax: (613) 241-4846 [email protected] www.peacebuild.ca Project Ploughshares Project Ploughshares is an ecumenical agency of the Canadian Council of Churches with a mandate to carry out research, analysis, dialogue, and public education on peace and security issues in Canada and the world. It is affiliated with the Institute of Peace and Conflict Studies at Conrad Grebel University College, University of Waterloo. Project Ploughshares 57 Erb Street West Waterloo, Ontario N2L 6C2, Canada (519) 888-6541 Fax: (519) 888-0018 [email protected] www.ploughshares.ca The views presented here do not necessarily reflect the policies of CIDA, CPCC, Project Ploughshares, or its sponsoring churches and agencies. First published February 2005 ISSN 1188-6811 ISBN 1-895722-43-8

PART I: CONSTRUCTING THE THREADS OF RESPONSIBILITY FROM THE CHILD SOLDIER TO THE ARMS MERCHANT

Approaching the problem of the child soldier through the lenses of state and corporate responsibilities related to the arms trade

There are more than 300,000 child soldiers under the age of 18 serving in state and non-state armed forces engaged in as many as 33 contemporary conflicts around the world. Human Rights Watch (2004) asserts that “technological advances in weaponry and the proliferation of small arms have contributed to the increased use of child soldiers. Lightweight automatic weapons are simple to operate, often easily accessible, and can be used by children as easily as adults.”1 The personal stories of child soldiers vividly illustrate how small arms exponentially escalate violence, horror, and harm in individuals’ lives.2 The ascendance of child soldiers in conflicts is one of many terrible social consequences of the international small arms trade.3 As characterized by Harold Hongju Koh (2003, p. 2335), US Assistant Secretary of State for Democracy, Human Rights and Labor, 1998-2001, “the availability of small arms contributes as much to the global proliferation of child soldiers as any government policy.”

Yet, it would almost appear that the availability of small arms and excessive oversupply is government policy. The small arms trade represents a commercial interest valued at $4-billion to $6-billion US annually in legal transactions. Legal transfers comprise an overwhelming 80 to 90 per cent of the total annual value of all small arms transfers; illicit grey market and illegal black market transfers only comprise 10 to 20 per cent of the total annual value of all small arms transfers, and often originate from legal transactions (Small Arms Survey 2001, p. 141). The small arms trade is a largely legal commercial activity that results in the destruction of the conditions for the healthful development of children, families, and nations around the world at an economic cost of hundreds of billions of dollars and a human cost of approximately 500,000 deaths every year (Small Arms Survey 2001, p. 1). Small arms have been responsible for 90 per cent of the casualties and deaths in recent wars (Rana 1995, p. v), and are often the weapons used exclusively in ethnic and internal conflicts (Pierre 1997, p. 4).4 International public outcry against the child soldier is evidence of a collective collapse in the perceived legitimacy of state and corporate impunity in arms trading, and of an acknowledgement of the gross, even obscene, disproportion between the economic value of arms trading and its costs to society and collective security. In spite of acute international concern, the small arms trade remains vastly state-sanctioned and -supported.

The child soldier is an emblem that taints the small arms trade as a whole, be it legal or illegal, and is a cri de coeur for international action. If the trade in small arms is a contributing factor to the increasing number of child soldiers in conflict, it begs the question of how to direct international action. How is trade in small arms to be conducted responsibly to stop arms from reaching children’s hands and from producing other egregious social harms, and which parties are to be held accountable for responsible conduct in small arms trading?

In matters of concern to the international community, the state is where the nexus of responsibility has conventionally rested for remedies for violations of individuals’ human rights; for remediation of harms to society and the environment; and for the implementation of measures for the prevention

Small arms & corporate social responsibi l ity 1 Ploughshares Working Paper 05-1

of threats to peace, security, and development. State sovereignty and responsibility form the essence of public international law; international law is primarily concerned with the rights and duties of states (Malanczuk 1997). International law regimes provide mechanisms for states to be held accountable to recognized standards in the governance and regulation of the small arms trade, i.e., the normative content of state responsibility for small arms trade conduct.

In contrast to recognized international norms regarding state responsibility for nuclear non-proliferation, banned chemical and biological weapons, and anti-personnel landmines, there is no corollary framework of recognized norms and standards to eliminate the illicit trade in small arms (Annan 2001), let alone corresponding duties to be applied to legal transfers to prevent small arms proliferation from creating a condition for increasing numbers of child soldiers and other grave social consequences. Without recognized norms and standards to eliminate the illicit trade in small arms, there is no framework for international cooperation among states or international action by civil society. Moreover, there is no “ammunition” to call for remedies for violations of individuals’ human rights; to seek remediation of harms to society and the environment; or to implement measures to prevent threats to peace, security, and development that are posed by the small arms trade.

As briefly discussed later in this paper, multilateral efforts such as the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects have had little success in developing norms recognized as a compelling basis for international cooperation and action, or elucidating the normative content of state responsibilities in this area. Working towards the progressive development of a more robust international legal regime to increase states’ accountability has proved to be a weak mechanism to corral the intricate, opaque, and elusive dynamics of international small arms trading and smuggling.

However, there is significant normative momentum brought to bear by the international non-governmental community to pressure states to adopt greater domestic regulatory controls and more robust international supervisory regimes to effectively end the trade in illicit and grey market small arms. Noteworthy and major non-governmental efforts include the Small Arms Survey located at the Graduate Institute of International Studies, Geneva, Switzerland; Biting the Bullet Follow-up Project of Bradford University, International Alert, and Saferworld; the Control Arms campaign headed by Amnesty International, International Action Network on Small Arms, and Oxfam; and the Nobel Peace Laureates International Arms Trade Treaty initiated by Dr. Oscar Arias and endorsed by 20 individuals and organizations awarded the Nobel Peace Prize. The United Nations Institute for Disarmament Research provides a forum for new ideas from civil society that seeks to extend the normative content of peace and security. There are also opportunities for the non-governmental sector to expand the scope of the campaigning on small arms by adopting innovative strategies and tactics recently applied in corporate responsibility campaigns.

As a secondary element to the issue of accountability for the proliferation of child soldiers through the availability of small arms, corporate responsibility is an evolving alternative discourse, albeit outside the recognized realm of public international law. By definition, corporations are generally considered to lack international legal personality and the capability to possess international rights and duties in the manner of states. Nevertheless, the discourse of corporate responsibility has increased recognition of the necessity for corporations to be responsible and accountable for the social and environmental costs related to the production and consumption of their goods and


services. Moreover, there have been nascent normative developments in the application of international human rights norms as sources for corporate responsibilities under international law, as exemplified by legal theorists questioning the classical view of legal personality under international law, and the United Nations Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights (ECOSOC 2003).

The boundaries of public international law are thereby pushed when non-governmental organizations and multilateral organizations apply to corporations international human rights principles previously reserved for state responsibilities. The corporate social responsibility discourse borrows from public and private international law, and from international human rights law in particular, to cobble together a patchwork of societal claims more or less coalesced around the corporation as the nexus of responsibility for remedies to individuals, remediation of harms, and prevention of threats to development that are created as a direct or indirect consequence of a corporation’s operations. Increasingly, corporate social responsibility discourse coalesces around corporate behaviour that constitutes threats to peace and security, with growing civil society scrutiny of corporations operating and profiting from zones of conflict.

In the case of the child soldier, a discourse on corporate social responsibility would examine the extent to which the small arms manufacturer, broker, and transport agent are to be considered responsible and held accountable for the complex and opaque supply chain leading to the arming of a child soldier, and the extent to which public and private international law regimes should mandate that corporate responsibility measures be voluntary in nature or subject to state command and control structures. The lens of corporate responsibility would observe that the manufacturer of the AK-47, the arms merchants who sold and bought from the arms broker, the arms broker who financed and facilitated the commercial transactions and licenses, and the transportation agent who moved the goods all have a kind of international legal personality and so have duties to protect the international human rights of children caught in the crossfire of their trade, and are subject to the analogous obligations imposed on states. Given the acceleration in the development of the corporate responsibility discourse, at what point might it be conceivable to postulate that corporations and private commercial actors engaged in the small arms trade are accessories to, or even perpetrators of, crimes against humanity?5

The boundary between civil society’s claims of harm from corporate behaviour and legal responsibility begin to dissolve as individual corporations adopt the discourse within their internal policies, and as states adopt the discourse in international public policy processes. Corporate responsibility discourse provides for the conceptual causal bridge between the child soldier and the arms merchant, and for the normative content of the remedy, remediation, and preventive measures to be adopted and internalized by corporations to address the social and environmental costs of arms production and consumption.

If one observes a gap in state accountability for harmful conduct in the small arms trade, one observes an abyss in terms of corporate responsibility. It is submitted that the establishment of a robust legal framework and the effectual elimination of the illicit trade in small arms and the pernicious elements of the legal trade also require a full articulation of the corporate responsibilities of the manufacturers, dealers, brokers, transportation agents, and financiers of the production and international transfer of small arms.6 When state responsibility is the sole lens applied to addressing


the threats to peace, security, and development posed by the arms trade, the conceptual causal bridge between the child soldier and arms merchant remains weak.

Moreover, the arms trade is a commercial activity burdened with the vestiges of association with state sovereignty, an inalienable state right to self-defence, and perceived intertwined national and economic interests, thereby compromising effectual and robust state implementation of any prescribed measures because of endemic conflicts of interest. Failing to address and articulate corporations’ responsibilities in the arms trade would only serve to perpetuate the fallacy that states’ national security interests remain inseparable from the interests of armaments industries within their territory. Indeed, corporate actors are increasingly “transnational” in character, operating above the legal bounds of domestic jurisdictions in the netherworld of a market unfettered by private international law regimes. Distinctive but complementary normative development of state and corporate responsibilities would remove the prevailing legal construct that the arms merchant has no duty beyond profit-making in a business that has profound ramifications for the international community and for the balance of peace and security between nations.

In sum, while state action continues to falter, corporate social responsibility promises to be a fertile area for civil society to develop norms to address the most destructive and outrageous outcomes of the arms trade, and to implement programs for advocacy directly at the corporate level to breathe life into normative principles.

From the articulation of responsibilities to a program for advocacy

The child soldier is an important starting point and endpoint in an analysis of emerging norms under international law and corporate responsibility related to the small arms trade. As a starting point, moral outrage and profound sadness at observed atrocities have led to some of the most significant achievements in public international law and in corporate responsibility. In 1859 Henri Dunant witnessed thousands of wounded soldiers dying without care in the aftermath of the Battle of Solferino, and spearheaded the movement to create humanitarian relief organizations that led to the establishment of the International Red Cross and the drafting and ratification of the Geneva Conventions. Raphael Lemkin’s crusade to recognize “genocide” as a legal concept and for the drafting and ratification of the Genocide Convention was born of his witness and experience of mass murder and persecution of Jews prior to and during the Second World War (Power 2002).

In the area of corporate social responsibility, international outrage at Shell International’s complicity with the Nigerian government in the suppression of local Ogoni peoples’ opposition to oil development and the execution of Ken Saro Wiwa in 1995 has forever changed how the oil and gas sector represents its sphere of responsibilities to the international community. Although much improvement in the social and environmental performance of oil and gas development companies must still occur, and serious international human rights infringements persist, it would have been unfathomable ten years ago for a corporate leader like Lord John Browne (2004), Group Chief Executive of BP plc, to declare the oil and gas sector’s role in addressing global warming to meet the standards set out in the Kyoto Protocol, albeit a proposed role that corporations would adopt with state “encouragement” rather than prescriptive regulations.


The corporate responsibility movement that mobilized around the oil and gas sector provides an interesting case study when considering a comparable network of non-governmental organizations around the small arms trade that brings together disparate interests from environmental, labour, human rights, and anti-globalization grassroots and international organizations that have conventionally been engaged in distinct campaigns. Such diverse alliances have been applied to such corporate sectors as retail in the Nike campaigns, automotive in the Ford campaigns, and diamonds in the Tiffany’s campaigns.

What is unimaginable now can become common corporate practice or public relations in ten years with sufficient public pressure and advocacy. Depending upon the strategy adopted by non-governmental organizations in a campaign around small arms trading, environmental and labour organization tactics such as market-based advocacy to pressure corporate early adopters of technologies or practices might be applicable, as explored later in this paper.

In the area of corporate responsibility, corporations and states often follow where public pressure leads, although with great tension, controversy, and ambiguous outcomes. For example, Shell Vice-President External Relations, Policy and Social Responsibility, Robin Aram, Chair of the Commission on Business in Society of the International Chamber of Commerce, has asserted that the United Nations Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights impose responsibilities that are applicable to states but not to businesses, thus undermining human rights (IOE/ICC 2004; CEO 2004). On the other hand, Emmanuel Etomi, Shell’s community development manager in Nigeria, admitted that Shell had inadvertently fueled corruption, conflict, and poverty through its oil activities (BBC News 2004). Direct action by the international small arms movement with corporations engaged in the small arms trade would also likely be characterized by contradictory corporate responses as incremental changes are incorporated into corporate practices and public relations over an extended period of international pressure and campaigning.

To maintain perspective when examining the macrocosm of the economics, politics, and legalities that propel the trading in small arms, it is important to highlight the microcosm of how people’s lives are traumatized and lost as a consequence of small arms trading. An overview of international law demonstrates an absence of state intent or consent to hold private actors engaged in the small arms trade accountable for the significant consequences and costs of conducting this business. However, our collective outrage at the accountability gap between the arms merchant and the child soldier can produce tremendous impetus for civil society’s engagement in market and political processes that develop nascent norms toward formative international law and corporate social responsibility. A child soldier’s story is our barometer that measures whether we have gone far enough in building the legal and market mechanisms necessary to protect the most vulnerable from the deleterious consequences of small arms trading.

Part II states the foundational elements of the international legal order that provide civil society with a compelling core argument from which to build demands for a rigorous and more expansive interpretation of states’ obligations to regulate the small arms trade. The UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, which produced a UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, is seen as an effort by the international community to advance international cooperation in the implementation of domestic and international legal controls. It is briefly argued


that a strict interpretation of state sovereignty by the United States, a permanent member of the Security Council under the United Nations Charter, and a corollary conservative application of an arms control framework suppressed the opportunity for innovation and for significant progress toward creating legally binding measures at the conference. This paper proposes that a focus on non-state actors, namely corporations or businesses engaged in the small arms trade, and on corporations’ nascent responsibilities under international human rights law shows promise in overcoming this “normative impasse” in controlling the international small arms trade. The scope of this research paper does not permit a comprehensive overview of either the legal jurisprudence or literature on the law of arms control, or international human rights law and corporate accountability. The author intends to more fully articulate and analyze the law of arms control and international human rights as it pertains to corporate responsibility in a doctoral thesis to be undertaken commencing in 2005.

In Part III, the paper finishes with a brief hypothetical case study for a program for advocacy by civil society to provide the impetus for full recognition and realization of these emergent norms on corporate responsibilities related to the arms trade, and to bring into public awareness how North American consumers are part of the international arms trade economy that makes it possible for child soldiers to be armed.

PART II: THE SCOPE OF STATE AND CORPORATE RESPONSIBILITY IN THE INTERNATIONAL TRADE IN SMALL ARMS

The law of arms control and the United Nations Charter

The basis in international law for the normative development of legal controls for the small arms trade is solidly entrenched within the body of recognized arms control law. The United Nations Charter clearly sets out state responsibilities to address recognized threats to peace and security that arise from the small arms trade as part of a larger process aimed at international stability, and for “the least diversion for armaments of the world’s human and economic resources.” The scope of this research paper does not permit the author to do justice to this rich body of legal literature and jurisprudence. For excellent overviews of the law of arms control see Den Dekker (2001) and Croft (1996).

In advocating for greater state responsibility and accountability in the international trade in small arms, it would be a matter of international will to provide normative content and specificity to these foundational elements of the international legal order. The UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, which produced a UN Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, is an effort by the international community to advance international cooperation in the implementation of domestic and international legal controls.

UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects

Aaron Karp (2002) in his article “Laudable Failure” describes the international community’s attempts at the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its


Aspects to provide normative content and specificity to small arms trade controls. The UN Conference (2001) can be characterized as laudable for the spirit and underlying motive of international cooperation through multilateral processes and advocacy by civil society to make significant progress in developing and articulating norms of state responsibility to eliminate the illicit trade in small arms. However, Karp (p. 182) asserts:

[I]n a more profound sense the outcome [of the UN Conference] could hardly have been worse for those who believe that small arms proliferation is a serious challenge for international peace and security. By depriving the UN of its ability to take initiatives and undermining the legitimacy of broad international action,7 the conference reduced the small arms process to a motley collection of unrelated national and regional efforts. It is no exaggeration to say that efforts to deal with the issue would be more aggressive today if the conference had never taken place. Even worse than the underwhelming final document was the climate of hopelessness it left behind.

Karp contends that the small arms process “never found the single normative principle required to build an international consensus and guide its long-term action” (p. 182). However, there were some emergent norms of state responsibility articulated at the UN Conference that indicate that international efforts to provide normative content to foundational state duties to address threats to peace and security posed by the small arms trade might not be a fruitless endeavour. These emergent norms include enhanced accountability to existing legal regimes, positive rather than passive state obligations, increased transparency, and a holistic approach to the supply chain of the small arms trade.

The People’s Republic of China, France, the Union of Soviet Socialist Republics [Russian Federation], the United Kingdom of Great Britain and Northern Ireland, and the United States of America are permanent members of the Security Council under Article 23 of the United Nations Charter. The regulation of armaments is the key responsibility of the Security Council as set out by Article 26 of the United Nations Charter:

In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.

However, the permanent members of the Security Council, the states entrusted with paramount responsibility to establish and maintain international peace and security, have some of the most developed small arms industries, and demonstrate a corresponding lack of international political will to restrict the trade in small arms at any systemic level, sometimes violating the very arms embargo mandated by the Security Council itself.

The figures from the Small Arms Survey 2001 (Chapter 1) on products and producers outline the dominance of the permanent members of the Security Council in the small arms trade. The People’s Republic of China is the major supplier of small arms to the US domestic market, and the China North Industry Corporation (Norinco) earned a total of $12-billion US from arms exports from 1980 to 1990. It is noteworthy that weapons only account for 20 to 30 per cent of Norinco’s overall


production while civilian products account for the remaining 70 per cent; there might be opportunities to influence Norinco’s corporate behaviour by market campaigns focusing on Norinco’s consumer products. As a major producer of conventional arms France holds an interest in an unrestricted arms market. The Russian Federation is a major small arms producer of such weapons as the 9mm Makarov pistol and derivatives of the AK series assault rifle, with exports of $39.1-million US in 1999. The United Kingdom is a major small arms supplier within Western Europe. The United States of America is one of the world’s largest producers of small arms, with over 300 companies and a total shipment value of $2.059-billion US in 1997.

Without the good faith, political will, and commitment of at least one permanent member of the Security Council to energize international cooperation to develop an international legal regime on small arms trading, there will be little meaningful progress. As evidenced by the strict US interpretation of state sovereignty at the UN Conference that denuded the UN Programme for Action of recognized legal authority, state responsibility can be a limiting strategy in addressing small arms control.

Moreover, Harold Koh (2003, p. 2347) notes that, in his opinion, the most troubling aspect of the UN Conference was that “all discussion still took place within an arms control, rather than a human rights framework, giving participating states too much freedom to place these issues on the back burner, while citing more pressing priorities.”

International human rights law, as a complement to the law of arms control, provides a promising source of engagement, particularly in the area of corporate responsibility.

Small arms trade and the corporate responsibility construct

A growing body of legal literature and jurisprudence supports a trend toward increasing recognition by the international community that the nature of public international law, and international human rights law in particular, might provide corporations with legal personality such that corporations have responsibilities and defined duties drawn from the normative content of international human rights instruments. The scope of this paper does not permit the author to do justice to this legal literature and jurisprudence. For excellent overviews of this area, please see Jagers (2002) and Joseph (2004).

The United Nations Norms on the Responsibilities of Transnational Corporations and other Business Enterprises with Regard to Human Rights is an example of the international community’s application of public international law as a normative source to develop corporate responsibilities under international law, as exhaustively stated in its Preamble:

Realizing that transnational corporations and other business enterprises, their officers and persons working for them are also obligated to respect generally recognized responsibilities and norms contained in United Nations treaties and other international instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Slavery Convention and the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery; the International Convention on the


Elimination of All Forms of Racial Discrimination; the Convention on the Elimination of All Forms of Discrimination against Women; the International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; the four Geneva Conventions of 12 August 1949 and two Additional Protocols thereto for the protection of victims of war; the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms; the Rome Statute of the International Criminal Court; the United Nations Convention against Transnational Organized Crime; the Convention on Biological Diversity; the International Convention on Civil Liability for Oil Pollution Damage; the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment; the Declaration on the Right to Development; the Rio Declaration on the Environment and Development; the Plan of Implementation of the World Summit on Sustainable Development; the United Nations Millennium Declaration; the Universal Declaration on the Human Genome and Human Rights; the International Code of Marketing of Breast-milk Substitutes adopted by the World Health Assembly; the Ethical Criteria for Medical Drug Promotion and the “Health for All in the Twenty-First Century” policy of the World Health Organization; the Convention against Discrimination in Education of the United Nations Educational, Scientific, and Cultural Organization; conventions and recommendations of the International Labour Organization; the Convention and Protocol relating to the Status of Refugees; the African Charter on Human and Peoples’ Rights; the American Convention on Human Rights; the European Convention for the Protection of Human Rights and Fundamental Freedoms; the Charter of Fundamental Rights of the European Union; the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of the Organization for Economic Cooperation and Development; and other instruments ….

The next steps in a program for advocacy could be breaking new ground in applying to the small arms trade a corporate social responsibility discourse that exhaustively draws from the rich normative sources of public international law and human rights law. To reflect the realities of a globalized economy, many parties in the international community are reconsidering the sharp line normally drawn between public and private responsibility.

“Corporate responsibility” as a response to globalization

In an age when public goods are increasingly put in private hands for profit, the foundational public values of peace and security, once considered sacrosanct to an international public order and legal regime, indeed a core responsibility of states and the international community, are becoming the domain of private industry.8 A development of post-Cold War national arms production opened to market forces, the international small arms trade has come to embody the privatization of states’ conventional means of maintaining or achieving peace and security, such that global proliferation and over-supply in small arms are being seen as the primary sources of insecurity, violence, and mass killing.9 The general capacity of states to control the arms trade has diminished as private capacity to penetrate global markets and territories with impunity has increased.


Moreover, public authority is splintered as the boundaries between public values and private profits are blurred in states’ complicity and collaboration with private actors in promoting their national small arms industry as supplier nations, or in exchanging their national primary resources to obtain small arms as recipient nations. Paradoxically, small arms as an economic driver remain coupled with national identity and security policies.

Critics of globalization argue that transnational corporations produce disproportionate wealth for an elite global class whose interests are generally aligned and coterminous with the political and economic hegemony of dominant states. Transnational corporations enjoy the protection of international trade law ratified by dominant states to make unconscionable profits without due accountability for the actual social and environmental costs of production or consumption. Vulnerable and disenfranchised peoples suffer increasingly acute economic, social, and environmental poverty from bearing the actual costs of transnational corporations’ operations, thus creating the conditions for global unrest and insecurity.

In response, beyond advocating for governance reform and compliance with domestic securities law, some “corporate responsibility” proponents seek to blunt the most egregious consequences of globalization by advocating for the recognition by transnational corporations of the actual social and environmental costs of production or consumption, and for their adoption of measures to mitigate, remedy, or assume these costs. Just as public international law has progressively evolved in the common interests of peace, security, and development to set out a dynamic, intricate, complex, and nuanced interplay between norms of states’ sovereignty and states’ responsibility, and corresponding obligations of cooperation within an international “community,” so certain corporate responsibility proponents argue that public and private international law must likewise evolve analogous norms of responsibility for transnational corporations. Corporate “transnationalism” – transcendence from accountability to domestic or international legal regimes with the exception of accountability for maximizing shareholder value – is argued to be a legal anachronism in the face of the threats to peace, security, and development posed by the unfettered economic and political powers of private actors within a globalized market.

Complementing international and domestic policy processes that grapple with the normative content of such corporate responsibilities, civil society has driven the construct of corporate responsibility as a means for corporate reform and social change. Advocates implement market campaigns meant to exact pressure on transnational corporations by increasing public awareness of the social and environmental costs associated with the consumption of particular products; spearhead shareholder actions meant to exact pressure on senior officers and management by engaging governance processes to challenge corporate policies and practices; and orchestrate sophisticated public awareness campaigns to encourage the “enlightened self-interest” of corporate leaders to change corporate policies in line with public demands for reform.

Public international law as provided by different regional and United Nations efforts will necessarily reach an impasse in its development, implementation, and effectiveness if it does not squarely address the paradox of state conflict of interest in privatized security. Constructs of corporate social responsibility reconcile contradictions and conflicts in state responsibilities by diffusing the nexus of public responsibility in line with the diffusion of private agency in determining public values. The nature of transnational corporations’ legal personality is a controversial topic that reflects the fluidity of the corporate social responsibility discourse and the intensity of the international debate. The


international legal system determines the kind of legal personality that corporations enjoy. The International Court of Justice (1949, p. 178) states that “[t]he subjects of law in any legal system are not necessarily identical in their nature and in the extent of their rights, and their nature depends upon the needs of the community.” However, the “needs of the community” are not crystalline since there are bitter divisions between industrialized and less industrialized states’ interests over how the legal personalities of corporations are formulated under the international legal system, i.e., industrialized states’ protection of transnational corporations that share converging economic and political interests. Transnational corporations’ legal personalities are ultimately derivative of those rights and responsibilities conferred by states, and will likely develop as multiple sources of international public pressure progressively influence states’ recognition of their legal personality.

A successful program of action could encompass within its strategic considerations the application of international human rights norms to influence public responses to corporate behaviour, and within its tactical considerations the dynamics of a globalized economy.

PART III: CONSIDERATIONS FOR A PROGRAM FOR ADVOCACY

Canada: A “player” in transnational legal processes

The Canadian government and Canadian non-governmental organizations have an important role to play in addressing corporate responsibility in the international small arms trade. Transnational legal process theory provides some insight into how Canadian government and Canadian non-governmental organizations can work to influence states and corporations to internalize international human rights norms within the context of the small arms trade. In summary, transnational legal process theory

observe[s] a cycle of interaction – interpretation – internalisation; repeated interactions among states and a variety of domestic and transnational actors produce interpretations of applicable global norms which can be and are eventually internalised into states’ domestic values and processes. Under this theory, various agents of internalisation – which include transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, issue linkages and interpretative communities – can provoke nations to move from grudging compliance to habitual internalized obedience with international rules. A nation’s isolation from transnational legal process thus helps explain its scofflaw status. Conversely, the success of these ‘internalisation agents’ in spurring a nation’s repeated participation in that process can help over time to encourage its obedience with particular norms of international law. (Koh [2002], pp. 327-328)

In applying transnational legal process theory to the small arms trade, among other recommendations for solutions in processes to develop and internalize norms of global small arms regulation, Koh (2003, p. 2355) notes that while transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, issue linkages and interpretative communities are in evidence, the inclusion of private actors needs to be addressed through a private/public network that expressly targets arms brokering and financial transfers modeled upon the “Kimberley Process” around conflict diamonds.


While corporate actors in the small arms trade currently hold “scofflaw status” in their isolation from transnational legal processes, the non-governmental human rights community can bring to bear existing strengths built over the past several years of campaigning – transnational norm entrepreneurs, governmental norm sponsors, transnational issue networks, issue linkages, and interpretative communities – to begin to pressure corporate actors to become repeated participants in policy processes that can over time encourage internalization of small arms control and human rights norms.

In Canada, Project Ploughshares, World Vision, the United Church, and the Steelworkers Humanity Fund had a productive engagement with Talisman on its operations in Sudan. Talisman’s dialogue with Canadian organizations occurred in tandem with the highly influential tactics of shareholder action adopted by corollary non-governmental organizations and individuals based in other countries. The promise of an effective response from the Canadian government, led by Lloyd Axworthy, then Minister of Foreign Affairs, to address Talisman’s operations, was ultimately dashed, although increased Canadian governmental attention on the matter contributed to an international climate of increased scrutiny and pressure. The transnational processes placed Talisman under considerable international scrutiny. As a consequence, Talisman has become emblematic of the perils of ignoring human rights and the risk of diminished shareholder value.

The case of Talisman illustrates the contributions that Canadian non-governmental and governmental bodies can make to a transnational process to pressure corporations to bend to international norms, even if Canadian efforts are frustrated domestically (Drohan 2003).

Applicable leverage points within a program for advocacy

So, where might the transnational issue network initiate constructive engagement with the small arms industry? Research on subsidiaries and other relationships in their supply chain would provide an assessment of which companies would be most vulnerable to market pressure. Strategic campaigns around Shell, Talisman, Nike, Ford, Tiffany’s, and Home Depot have all been based on an assessment of leverage points of their market vulnerabilities.

A hypothetical case study of direct action on a small arms corporation might consider Norinco. As noted earlier, there might be opportunities to influence Norinco’s corporate behaviour by market campaigns focusing on Norinco’s consumer products. Although further careful research is needed, Norinco is reputed to own a subsidiary, Beta Toys Inc., that is based in California and sells stuffed toys to major retailers such as Walmart. Pressure on a responsive American retailer can be successful; Home Depot was pressured to address the issue of non-conflict wood from sustainable sources. The transnational issue network around small arms might partner with labour organizations engaged in the issue of Chinese slave labour practices and environmental organizations that have been involved in successful major retailer direct action to construct a strategy and sophisticated complementary tactics to encourage Walmart to cease sales of toys that provide profits to a major small arms producer. The US trade sanction of $100-million US on Norinco for providing Iran with materials that could help in producing weapons of mass destruction, Norinco’s exchange of arms and purchase of mining rights with the corrupt regime in Mozambique, and Norinco’s suspected use of slave labour in China-based operations would provide a rich basis in international human rights law and arms control law to critique Walmart’s supplier policy.


A public awareness campaign of how putting a toy in the arms of a child in North America can contribute to putting a gun in the arms of a child in Africa could be an effective market campaign that Walmart would be highly responsive to, and that would help bring Norinco’s practices and the problem of the small arms trade into public consciousness. In this hypothetical campaign, international human rights norms are important in creating a campaign strategy. International human rights norms might be used as a source for crafting key messages to educate the public and for articulating the legitimacy of advocating for increased corporate responsibility. Researching and anticipating the dynamics of a globalized marketplace are important elements of identifying campaign tactics, such as the tactical choice of direct action on a major retailer. Another key consideration would be the content of the “negotiation envelope,” i.e., the normative content of state responsibility appropriated for application to the corporation’s duties, and the corresponding enforcement mechanisms of reporting, monitoring, and verification. The negotiation envelope must be carefully considered and robust in its demands, as a weak negotiation envelope sets a precedent that denudes future advocacy efforts with other corporations. Is there a framework for the participation of private actors in transnational legal or policy processes such as the Kimberley Process or the Forest Stewardship Council that might be a desirable model for adoption around the small arms trade?

CONCLUSION: MEASURING ACCOUNTABILITY FROM THE ARMS MERCHANT BACK TO THE CHILD SOLDIER

One of civil society’s most compelling arguments in a program for advocacy at the corporate level is to educate the public on how consumer spending affects individuals’ lives, and how consumer choices have the power to hold corporations accountable for their behaviour. There is a story to tell on how the child soldier is the result of an irresponsible international small arms trade, and civil society’s strength lies in mobilizing social action around such persuasive stories of the need for change. Telling a story that explains how a particular corporation is contributing to the availability and oversupply of small arms in zones of conflict and how to take action in our everyday lives to hold that corporation accountable will be one small step forward on a long and winding road to effective state controls on the arms trade.

The author is grateful for the opportunity provided by the project to develop policy capacity in an area that will form the basis for a doctoral thesis and continuing work in the non-governmental business and human rights sector. The author thanks Ken Epps of Project Ploughshares and Peggy Mason for their thoughtful and insightful reviews. All errors of fact and analysis remain those of the author. The author extends heartfelt thanks to Lynne Griffiths-Fulton, Program Associate of Project Ploughshares and the Steering Committee of the Small Arms Working Group; without their extraordinary support and understanding of multiple work and family commitments, this paper would not have been possible.


NOTES 1. See also the Coalition to Stop the Use of Child Soldiers, http://www.child-soldiers.org, an international movement of organizations pressing for the adoption of an Optional Protocol to the Convention on the Rights of the Child, which sets 18 years of age as the minimum age for all forms of military recruitment and use in hostilities.

2. The Child Soldier project, a telecollaborative project between iEARN-Canada and iEARN-Sierra Leone, at http://www.childsoldiers.org/about, is a place where youth of Sierra Leone bear witness to the issue of the Child Soldier. In “My Life as a Child Soldier” Ulric Quee at iEARN-Sierra Leone, Freetown testifies that his parents were killed by armed men, and, as a nine-year-old child, he was then recruited as a child soldier and given an AK-47 rifle to fight on the front lines.

3. This research paper uses the term “small arms” to refer to a category of weapons including handguns, revolvers, pistols, automatic rifles, carbines, shotguns, and machine guns.

4. Sislin and Pearson (2001, p. 25) state that “it is indicative of the importance of small arms that Africa, which imports the least amount of major conventional arms, has the largest number of regional violent conflicts.”

5. See deGuzman (2000) for a discussion of the international community’s decision to adopt a knowledge standard and to reject any discrimination grounds or motive requirement in clarifying the elements of crimes against humanity. She states that “by prosecuting as crimes against humanity any serious inhumane act committed with knowledge that it is part of a broader attack against civilians, the international community defines the contours of a jurisdictional sphere beyond that of traditional state sovereignty. This sphere is not limited to crimes committed with state support, or as part of an armed conflict, or with discriminatory intent. Rather, all serious inhumane acts committed as part of a broader attack against civilians are the concern of the international community” (p. 403). Given the expansive definition of crimes against humanity under the Rome Statute and evolving under customary international law, corporations that engage in small arms trading with the knowledge that the small arms would be part of a broader attack against civilians might conceivably be brought within the jurisdiction of international criminal law at some future point.

6. United Nations Report of a consultative meeting of experts on the feasibility of undertaking a study for restricting the manufacture and trade of small arms to manufacturers and dealers authorized by States (A/54/160) states that the “terms ‘manufacturers’ and ‘dealers’ are generally used in the following sense. Manufacturers develop, make, assemble, repair or convert small arms and light weapons and ammunition (and components). Manufacturing operations in many cases involve co-production and other licensing arrangements. Dealers in arms are engaged in at least three major types of commercial activity: (a) Retailers and wholesalers who buy and sell arms; (b) Brokers who arrange arms deals, i.e., who materially benefit from facilitating a deal; (c) Transportation agents who arrange the delivery of arms, i.e., who ensure the transport to complete the deal.”

7. Under Secretary of State John Bolton stated that the United States would not permit small arms to become a major issue of concern for the UN.


8. For a study on the rise of the global privatized military industry and Privatized Military Firms or PMFs, see Singer (2003). He notes (pp. 8-9) that “the idea that private companies could perform these military functions sounds fanciful enough. MPRI advertises itself as possessing ‘the greatest corporate military expertise in the world’. The very possibility of such a claim, invoking the mixture of the public military and the private modern business corporation, would have seemed not only paradoxical but even preposterous just a few years ago. In the post-Cold War era, though, this cross of the corporate form with military functionality has become a reality. A new global industry has emerged. It is outsourcing and privatization of a twenty-first-century variety, and it changes many of the old rules of international politics and warfare.”

9. Singer (2003, pp. 54-56) observes that the end of the Cold War brought major shifts in the international market of security, such that the resources and tools for large-scale violence were brought into the reach of private actors. On the linkage between the post-Cold War small arms trade proliferation, diminished State sovereignty, and ascendant corporate powers, Singer notes, “A linked trend contributing to the boom in conflict has been the proliferation of inexpensive light weapons. The typical analyses of world threats focus on the most complex and expensive systems, but light weapons … are the weapons most often used in contemporary warfare. They produced 90 percent of all casualties in the 1990s, mostly civilians. In West Africa alone, 2 million people were killed by small arms in the 1990s. After 1989, millions of light weapons were declared surplus and dumped on the world market. Much of the stocks ended up in the hands of arms brokers and gunrunners, who have no compunctions about their final destination or use. At the same time, manufacturing has continued apace. There are an estimated 550 million small arms floating around the globe, such that there is no place that small arms are not startlingly cheap and easily accessible. … The consequence is that governments no longer have control over the primary means of warfare, which was once key in the formation of states. Now, private conflict groups can present threats. In turn, private firms can tap the same arms market to build their own force capabilities, often in direct response.… Indeed, in much of the developing world, the security environment is shaped by the very weakness of the state. Most borders are permeable, with only sporadic and weak control of the flow of people and goods.… In sum, many states are less willing and less able to guarantee sovereign autonomy. Instead, they have increasingly delegated the task of securing the life and property of their citizens to other organizations, including PMFs. The irony is that this new wave is a reversal of the processes by which the modern state originally evolved. To gain military power, regimes do not need to follow the old path of developing their economy or efficient state institutions to tax for military forces. Rather, they must simply find a short-term revenue source, such as granting a mining concession, to pay a private actor.”


BIBLIOGRAPHY Annan, A. (2001, July 10). Small arms, big problems, International Herald Tribune. [Online]. Available: http://www.un.org/News/ossg/sg/stories/sg_smallarms.htm.

BBC News (2004, June 11). Shell admits fuelling corruption. [Online]. Available: http://news.bbc.co.uk/2/hi/business/3796375.stm.

Browne, J. (2004). Beyond Kyoto, Foreign Affairs 83 (4). [Online]. Available: http://www.mtholyoke.edu/acad/intrel/afp/kyoto.htm.

Corporate Europe Observatory (2004, March). Shell Leads International Business Campaign Against UN Human Rights Norms. [Online]. Available: http://www.corporateeurope.org/norms.html.

Croft, S. (1996). Strategies of Arms Control: A History and Typology. Manchester: Manchester University Press.

Den Dekker, G. (2001). The Law of Arms Control. The Hague: Martinus Nijhoff.

deGuzman, M. (2000). The Road from Rome: The Developing Law of Crimes against Humanity, Human Rights Quarterly 22 (2), 335-403. [Online]. Available: http://www.soc.umn.edu/~boyle/22.2deguzman.html.

Drohan, M. (2003). Making a Killing: How and Why Corporations Use Armed Force to do Business. Toronto: Random House Canada.

Human Rights Watch (2004). Facts about Child Soldiers. [Online]. Available: http://hrw.org/campaigns/crp/facts.htm.

International Court of Justice (1949). Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Reports, beginning at p. 174.

International Chamber of Commerce & International Organisation of Employers (2004, March). Joint views of the IOE and ICC on the draft “Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights.” [Online]. Available: http://www.business-humanrights.org/Categories/Principles/UNNormsonbusinesshumanrights/UNNormsKeycommentaries?&batch_start=31.

Jagers, N. (2002). Corporate Human Rights Obligations: In Search of Accountability. Antwerpen: Intersentia..

Joseph, S. (2004). Corporations and Transnational Human Rights Litigation. Oxford: Hart Publishing.

Karp, A. (2002). Laudable Failure, SAIS Review XXII (1), 177-193.

Koh, H. (2002). Opening remarks: Transnational legal process illuminated. In M. Likosky (Ed.) Transnational Legal Processes: Globalisation and Power Disparities. Pp. 327-328. London: Butterworths LexisNexis.


http://news.bbc.co.uk/2/hi/business/3796375.stm

http://www.mtholyoke.edu/acad/intrel/afp/kyoto.htm

Koh, H. (2003, May). Lecture: The Robert L. Levine Distinguished Lecture Series: A World Drowning in Guns. Fordham Law Review 71, 2333-2362.

Malanczuk, P. (1997). Akehurst’s Modern Introduction to International Law, 7th Revised Edition. New York: Routledge.

Pierre, A. (Ed.) (1997). Cascade of Arms: Managing Conventional Weapons Proliferation. Cambridge, Mass.: The World Peace Foundation.

Power, S. (2002). “A Problem from Hell”: America and the Age of Genocide. New York: Harper Collins.

Rana, S. (1995). Small Arms and Intra-State Conflict, Research Paper No. 34. Geneva: United Nations Institute for Disarmament Research.

Singer, P. (2003). Corporate Warriors. New York: Cornell University Press.

Sislin, J. & Pearson, F. (2001). Arms and Ethnic Conflict. Lanham, Maryland: Rowman & Littlefield.

Small Arms Survey (2001). Small Arms Survey 2001: Profiling the Problem. Oxford: Oxford University Press.

United Nations Economic and Social Council (2003, August 26). E/CN.4/Sub.2/2003/12/Rev.2.

United Nations (2001, July 9-20). Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects. New York. A/CONF.192/15.

United Nations (1999, July 6). Report of a consultative meeting of experts on the feasibility of undertaking a study for restricting the manufacture and trade of small arms to manufacturers and dealers authorized by States. (A/54/160). [Online]. Available: http://www.smallarmssurvey.org/source_documents/UN%20Documents/Other%20UN%20Documents.


http://www.smallarmssurvey.org/source_documents/UN Documents/Other UN Documents

http://www.smallarmssurvey.org/source_documents/UN Documents/Other UN Documents