Liberal bill leaves major hole in Arms Trade Treaty obligations, study says

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A new study says the Trudeau government's effort to comply with a global arms trade treaty is fundamentally flawed because legislation drafted by the Liberals is written in such a way that it allows Ottawa to export military goods to human rights abusers or foreign conflicts without hard constraints.

The Trudeau government has made a great deal of the fact it's acceding to the United Nations' Arms Trade Treaty, holding this up as an example of how it's taking a "new, ethical approach to foreign affairs."

But Michael Byers, who holds a Canada Research Chair in Global Politics and International Law at the University of British Columbia, says the Liberals are making few changes to Canada's arms-control regime as they prepare for Canada to join the treaty.

Furthermore, he and fellow UBC scholar Parmida Esmaeilpour reveal in a new report, "Bill C-47: An Act to facilitate arms exports to countries which violate human rights?," that the Liberals are leaving a major hole in Canada's arms-control regime untouched. This problem was exposed during a legal challenge of a $15-billion deal to ship weapon-equipped combat vehicles to Saudi Arabia, a country that regularly ranks among the "lowest of the low" on human rights by U.S. democracy watchdog Freedom House.

The Liberal government, which made the decision to allow the combat vehicle exports under Canada's existing arms-control system, despite reports of eroding human rights conditions in Saudi Arabia, defended their actions last year in response to a lawsuit launched by Montreal law professor Daniel Turp. Their defence was that the foreign minister has extremely broad discretion on whether to approve weapons shipments.

"In fact, even if the minister was of the opinion that there was a risk the goods would be misused, he would still have the discretion under ... [law] to authorize the export of such goods if other pertinent considerations justified it in his opinion," lawyers for the Canadian government declared in a court filing last year.

The court's ruling exposed a gap between the public claims Ottawa makes about Canadian arms-export controls and the actual constraints these rules place on a minister. Successive federal governments have boasted that Canada's controls on weapons exports are among the "strongest in the world."

Bill C-47, the legislation that will bind Canada to the UN treaty, establishes controls over Canadians acting as arms brokers between countries outside of Canada and obliges the foreign minister to consider several criteria before authorizing export permits. It also increases fines for summary conviction offences to as much as $250,000.

"These, the Trudeau government claims, are the only changes needed," Prof. Byers writes, noting that Liberal cabinet ministers are echoing their Conservative predecessors to justify the lack of a bigger overhaul of export rules by asserting that Canada already has one of the best arms-control regimes around the globe.

"Bill C-47 itself is fatally flawed. It should be scrapped, and the legislative process be started over again – with a new bill that … imposes hard legal limits on the foreign minister's discretion to approve exports," the report says.

The legislation would amend Canada's existing Export and Import Permits Act to set out mandatory considerations that the foreign minister must take into consideration before approving an export permit or arms-brokering permit. But it does not set out the criteria. It only authorizes the creation of regulations that would include them.

The report says the Liberal legislation fails to live up to the Arms Trade Treaty (ATT). "The absence of any real substance to these requirements renders Bill C-47 incompatible with the ATT," the authors write.

"The legal obligation under the arms treaty goes far beyond the 'consideration' of certain factors; it is an obligation to refuse permits in certain high-risk circumstances," they say.

"By leaving the decision to approve or disapprove a permit to the minister's discretion, as opposed to creating hard legal limits on that discretion, Bill C-47 is – in terms of ATT implementation – a failure."

The report was published by the Rideau Institute, which calls itself a independent research and advocacy think tank on foreign and defence policy.