Wednesday, July 4, 2012

Assessement of changes in the Chair's paper

by Ray Acheson, Reaching Critical Will of WILPF

On Tuesday, 3 July, the Chair released a new version of his discussion paper. He emphasized that the paper in no way prejudices negotiations but is intended to inject some “spice” into the discussions. This assessment only notes the changes between the 14 July 2011 version and the 3 July 2012 version of the Chair’s paper.

  • The new version adds a paragraph on victims’ assistance, which says states parties are “Resolved to do their utmost to provide assistance to the victims of armed conflict, including through appropriate medical care, rehabilitation, and social and economic reintegration.” [Note: the section on victims’ assistance in the body of the text has been eliminated.]

  • The new version does not include the reaffirmation the self-determination of peoples, etc. that was in the original.
  • The paragraph acknowledging the right of states to acquire conventional arms has been shortened and no longer notes that the right to acquire arms does not create an obligation to do so.
  • The new version no longer reiterates the general prohibition against the use or threat of force or the principles of peaceful settlement of disputes and non-interference in internal affairs of states.
  • It no longer recalls the obligations of states to comply with UN Security Council decisions.
  • It no longer recognizes that disarmament, non-proliferation, and arms control are essential for the maintenance of international peace and security, nor does it highlight the priority of nuclear disarmament.

Goals and objectives
  • This section has solidified to three points: it now seeks the highest possible international standards on the arms trade in order to reduce unnecessary human suffering; inhibit the diversion into the illicit market; and promote transparency, accountability, and the responsibility of states.

Scope: weapons
  • The scope remains the largely the same, except that it no longer includes technology and equipment designed and used to develop, manufacture, or maintain any of the categories of weapons.
  • This section now indicates that states parties “shall establish, maintain, and publish a control list of the conventional arms they consider falls within the scope of this Treaty.”

Scope: activities
  • This section has been significantly expanded. Rather than simply listing the activities to be covered, it clarifies and defines each.
  • It also specifies that a transfer does not include the supply of conventional arms and related items by a state to its forces stationed abroad or to support UN peacekeeping operations.
  • It also now specifies that states parties shall establish national legislation, regulations, and administrative procedures for transfers, including at a minimum for import, export, control of brokers, transit and transshipment.
  • It includes a new paragraph on preventing circumvention of the treaty.

Prohibition of transfers
  • The new paper includes a new section on prohibition of transfers, specifying that a state party shall prohibit any transfer if it would violate any measure adopted by the UN Security Council acting under Chapter VII of the Charter; if it violates any relevant international obligations; if it will be used to support, encourage, or perpetrate terrorist acts; or if it will be used to commit grave breaches of international humanitarian law (IHL).

  • This section has been rearranged so that the two categories of criteria are now “potential violations of international law” and “potential consequences of export,” rather than “international, regional, and subregional obligations of states” and “potential consequences of arms transfer on peace and security”.
  • The first category calls for assessment of serious violations of international human rights law, IHL, international criminal law, genocide, crimes against humanity, war crimes, or the risk of diversion for use in any of the above.
  • This category also suggests that in circumstances when a transfer is granted despite a substantial risk, a state party “shall take appropriate precautionary and preventative measures to mitigate such risk,” including by “working with the recipient country, suspending or delaying authorisation, seeking further information or clarification regarding the transfer or attaching conditions to the transfer.”
  • The second category calls for assessment of substantial risk that the transfer will be used in a manner that would seriously undermine peace and security or facilitate acts of aggression, etc’ that it will be used to commit acts of transnational organised crime, be diverted to unauthorised end-users, be subject to corrupt practices, or have severely adverse economic impacts within the recipient state “that would significantly outweigh the security benefit of the export”.
  • For both categories, the paper indicates that where a substantial risk exists “there shall be a strong presumption against authorisation.”

  • The new version emphasizes the implementation will happen at the national level.
  • It no longer states that the treaty “shall be implemented in a manner that would avoid hampering the right of self-defense of any State party” or that states parties should “assign the highest priority” to ensuring that implementation of the treaty “is not discriminatory, subjective in nature” nor could represent political abuse.

National authority and systems
  • The authorization systems section has been simplified; it no longer lists the responsibilities of national authorities but indicates they will have “defined duties”.
  • It no longer specifies the registration of brokers or prevention of diversion.
  • The notification systems section is simplified but largely remains the same.

Record keeping, reporting, and transparency
  • The new version specifies records shall be kept for a minimum of 20 years, as opposed to 10 in the original draft.
  • It no longer specifies that records shall be kept for denials.
  • It indicates that state parties must submit their annual reports not just to the Implementation Support Unit but also to the UN Register of Conventional Arms.

  • The new version adds the requirement for states parties to adopt measures to inspect and seize shipments.

Implementation Support Unit
  • No longer specifies that it will act as repository for transfer denials.

International cooperation and assistance
  • The first paragraph specifies that exchange of information is voluntary.
  • The section on assistance is significantly simplified, only specifying that states parties may offer or receive assistance through various channels.

Victims’ assistance
  • The two paragraphs on provision of victims’ assistance have been eliminated.

Final provisions
  • Entry into force is now specified to occur 30 days after the 65th ratification or accession or three years after the 30th ratification or accession, whichever happens first.
  • The amendment provision has been expanded to specify that amendments will be considered at Amendment Conferences if a majority of states parties notify the ISU that they support further consideration of the proposed amendment no more than 90 days after its circulation.
  • It also specifies that amendments shall be adopted by consensus of the states parties present at the Amendment Conference.
  • The section on consultation no longer specifies that when considering a potential transfer denial, the parties involved are encourage to consult with each other to allow the recipient country an opportunity to avoid  the denial.
  • A new paragraph indicates that states parties shall apply the treaty to all transfers including to those states not party to the treaty.
  • It also specifies that states parties cannot enter other agreements that undermine the goals and objectives of the ATT.