Monday, July 30, 2012

A pause for reflection

by Ray Acheson, Reaching Critical Will of WILPF
On Friday afternoon, the arms trade treaty (ATT) negotiation conference closed without adopting a treaty. During the morning plenary, the United States, followed by Cuba, DPRK, Russia, and Venezuela, declared that negotiations needed to be extended. Thus the six year process to develop an ATT failed to achieve its goal. Furthermore, the draft treaty that would have been adopted was much weaker than the one envisaged by those who initiated the process in the first place. And so while this particular course has ended without a treaty, it is by no means the end of the road for an ATT altogether. The discussions over the past month have further demonstrated the need to develop such a treaty, and the need to do though a non-consensus based process.

Speculation continues as to why the United States decided to scuttle the conference. A US State Department press release argued that the conference “ran out of time to reach a consensus text,” although, by the end of the month the text had been significantly weakened in order to meet all of the US government’s red lines. Indeed, the US delegation admitted it did not have any “core” objections to the draft treaty. Some believe the Obama administration caved to pressure from the National Rifle Association, allowing domestic politics to undermine the development of international law. However, other governments opposed to the ATT might have blocked its adoption if the US delegation had not; Russia, as well as the others mentioned above, were vocally disgruntled with the process as well as the text and might have called for more time regardless of the US position.

Yet the countries standing against adoption of the treaty were the vast minority. 90 countries delivered a joint statement on Friday expressing their disappointment. These countries, which included several of the major arms exporters such as Germany and France, indicated that the draft treaty developed by the conference had “the overwhelming support of the international community as a base for carrying forward our work.” However, as the ATT Monitor repeatedly pointed out (e.g. No. 17 and No. 18), the draft ATT had significant loopholes that would have undermined its ability to truly diminish human suffering as a result of the irresponsible arms trade. Thus not only did the consensus-based process fail to result in any treaty, but it had already extended negotiations to the point where the treaty on the table did not actually establish the highest possible common standards for regulating international arms transfers.

The United States recognized this problem from the outset, which is ostensibly why it voted against the 2008 UN General Assembly resolution establishing an open-ended working group on the ATT. In an explanation of vote, the US delegation argued, “Any ATT would require the support of the major arms exporters to be effective, and we believe that some major arms exporters would refuse to agree to an ATT that required meaningful, effective conventional arms transfer controls policies. The only way to convince all major arms exporters to sign on to the ATT would be to weaken its provisions.” This is, of course, exactly what happened throughout the July negotiations, as the draft texts became weaker and weaker in order to accommodate the demands of the USA, Russia, and China, as well as major importers such as India.

In this same explanation of vote, the US delegation also recognized that “[c]oncluding a weak ATT would legitimise an international standard based on a lowest common denominator that would not address the problem of illicit and irresponsible arms transfers.” By Friday, this indeed was in danger of happening, due to the refusal of the USA and other major exporters to accept high standards. The draft treaty did not set the highest standards and its weak provisions could indeed have legitimized irresponsible transfers, providing legal cover to those wanting to put priorities of profits and politics above human lives, justice, and dignity.

There is perhaps further irony in the fact that the decision to conduct the ATT negotiating conference on the basis of consensus was made in order to bring the US government on board. Even back in 2009, when the UN General Assembly adopted resolution 64/48 to begin the negotiating process, many governments recognized the potential problems with operating by consensus. Among others, the delegations of Austria, Germany, Ireland, Lichtenstein, Mexico, Netherlands, Norway, Portugal, and Switzerland expressed concern with the consensus rule. The Norwegian delegation argued, “We are concerned that the requirement of consensus could negatively affect the negotiations and reduce the quality of the outcome. Deciding that all states have the right to veto and block the end result from the outset of a negotiating process will seriously undermine the credibility of the process.”

These predictions were accurate. Most of the major exporters, along with several countries concerned that the treaty would be applied with discrimination against their governments, rigorously opposed strong criteria and comprehensive scope, and fought to ensure the text incorporated several major loopholes to undermine the treaty’s implementation.

On the other hand, at least 74 governments were opposed to the weak texts being placed before them. In joint statements on 20 July and 26 July these countries demanded a strong treaty to prevent the authorization of transfers of conventional arms where there is a substantial risk that those weapons would be used for, or facilitate, serious violations of international law, including international human rights law and international humanitarian law, or that they will be diverted to the illicit market and to unauthorized end-users.

Thus the rule of consensus allowed the view of the minority—those states with political or economic concerns about regulating the international arms trade—to win the day. In a statement following the conference, the Mexican government reiterated its displeasure with the consensus rule, which “makes it impossible to reach agreements when there is broad and clear support, which is nullified by the opposition of a minority of states”.

However, they are indeed a minority. And while they might have won the day, they certainly have not won altogether. While the consensus-based process produced a weak treaty that could not be adopted in spite of its minimal standards and its overriding loopholes, the process also demonstrated that the majority of countries do in fact want a strong treaty that would actually make a difference in the lives of those suffering from armed violence. There were many more countries fighting for a strong treaty than there were fighting to undermine it. There were also many more countries demanding the treaty prevent gender-based violence (GBV) than there were arguing against this. While the Holy See said only two states supported GBV while 20 were against it, in fact, 75 countries supported the inclusion of GBV in the treaty.

The ATT process demonstrated that there is already an overwhelming norm against transferring arms when there is a risk of violation of human rights and international humanitarian law, including acts of gender-based violence. It is this norm that must be built upon in the future and codified into international law through a process working with normal UN rules such as a two-thirds majority vote.

After the conference’s failure on Friday, UN Secretary-General Ban Ki-moon said, “I am encouraged that this is not the end of the ATT, and that States have agreed to continue pursuing this noble goal.” The 74 countries that came together during the negotiation conference must continue to work for a strong treaty, perhaps by developing a strong draft for consideration at this year’s UN General Assembly. The draft treaty currently on the table is insufficient to close the gaps in the international arms trade, but a stronger treaty would go a long way towards diminishing the violent consequences of this trade.

That said, an ATT cannot stand on its own to end the consequences of armed violence. Only a cessation of reliance on weapons for security can do this. As Dr. Robert Zuber of Global Action to Prevent War argues in another piece in this edition, “Our hope for an ATT is that it provides new opportunities to stigmatize the staggering arms trade, not to provide new impetus for its growth.” Since the beginning of the ATT process, WILPF has argued that a strong ATT can help build the foundations for not just the regulation but also the reduction of the arms trade, along with the reduction of militarism throughout politics and society, reduction of military spending, and redirection of economic resources. As we pause for reflection in the process to develop an ATT, we should keep this nobler goal in mind.