Friday, July 6, 2012

Addressing loopholes in “assessing”

by Katherine Prizeman, Global Action to Prevent War

As noted by the delegate of New Zealand on Thursday morning, success for the arms trade treaty (ATT) means the adoption of standards “high enough for it to be realistic to expect the treaty to contribute meaningfully to global peace, security, and stability” (emphasis added).  Ambassador Dell Higgie noted that in setting an obligation for states to conduct a “risk assessment” before authorizing any export of arms, the ATT must codify circumstances when states should decline arms transfers. These circumstances include situations where arms are likely to provoke or exacerbate regional conflict, contribute to economic or social destabilization, or be used by criminal elements or terrorists. Codifying circumstances that would require the denial of arms transfers, in addition those already required under international law such as arms embargoes, is essential such that the legal framework provided for in the ATT will have a meaningful, measurable impact on international peace and security.

The idea that an ATT’s success depends on how it “meaningfully” contributes to global peace and security is a critical one. Regulating the arms trade through a written list of items to ‘bear in mind’ when conducting arms transfers is not enough—it is essential that the ATT does more than improve the regulation of the international trade in conventional, but that it also reduces and prevents diversion of arms into the illicit market and prevents irresponsible transfers that contribute to armed conflict and violations of human rights and international humanitarian law.  This was noted by the delegation of Costa Rica, which explicitly underscored the importance of the ATT as more than a tool to be used to facilitate procedural authorizations of arms transfers.

As evidenced by the statements from the delegations of Nicaragua and Malaysia, there are some states that are skeptical of, if not opposed to, an ATT that goes beyond general norm- and standard-setting and attempts to control the trade in conventional weapons by codifying criteria that are, in their view, “immeasurable and broad in nature”. During his opening address as President of the Conference, Ambassador Moritán made clear that there is a stark difference between regulation and control, noting that the ATT seeks the former and not the latter. While it is true that implementation of the ATT will be dependent on national authorities and their “assessment” of any respective transfer, over-compensating for fears of states needing to cede their control over the arms trade by weakening the language around the treaty’s criteria can impede the ATT's  ability to contribute meaningfully to global peace and stability.

The most recent Chair’s paper issued on 3 July demonstrates the need to close loopholes in “state assessment” of transfers, which will determine how successful the ATT ultimately will be. The paper notes, “Where substantial risks exist, there shall be an overriding presumption against authorization.” This is substantially weaker than the previous version of the Chair’s paper from July 2011 that notes, “States shall not” authorize transfers when such risks exist. It is also unclear precisely what “presumption” refers to, leaving room for various interpretations and a further lack of clarity in setting the terms to regulate the international trade in conventional arms.

Therefore, navigating the line between states parties’ right to assess transfers and some external mechanism associated with “control” has become a major concern for delegations. While the challenge of verification and oversight continues to be divisive, it is essential that some level of accountability exists beyond requiring states to conduct entirely private “assessments”. As noted by the delegation of Malaysia, confidence-building measures (CBMs) provide for verification and assessment through record-keeping, transparency, and reporting, although these are not the only tools available. The representative of CARICOM called for an ambitious proposal for an Implementation Support Unit (ISU) with “some measure of scrutiny by an independent body founded in the agreement and funded by States Parties.” Endowing an ISU with the ability to receive and verify reports from states parties on the implementation of their treaty obligations would contribute greatly to strengthening the treaty. Including provisions and mechanisms that would strengthen the ability of states to carry out sound and consistent assessments based on verifiable information is an essential step in this strengthening.

While states will maintain the right to exercise authority over the decisions of whether a transfer may or may not be denied, some additional level of verification must be included, most especially since the methods for conducting assessments are neither clear nor uniformly defined. As noted by the Brazilian representative, national efforts are not enough to address some of the problems that are essentially of a transnational nature. Therefore, buttressing the treaty such that “state assessment” is reinforced by solid verification and accountability measures is imperative. The fear of discriminatory interpretations and politically-motivated manipulation of the ATT’s criteria is valid, but is not insurmountable. Such fear should not deter states from strengthening the treaty’s language beyond “state assessment” and “presumption against authorization”. Whether a document outlining general norms and objectives for carrying out arms transfers would have any effect on international peace and security is unclear, but states must go further in pushing for an ATT that has sufficient structural capacity to provide for verification of national transfers and oversight of treaty implementation.