by Katherine Prizeman, Global Action to Prevent War
Informal consultations over the weekend
yielded a new set of draft texts related to the various sections of the arms
trade treaty (ATT)—scope,
criteria,
international
cooperation and assistance, implementation, an Implementation
Support Unit (ISU), and final provisions. While the President of the conference,
the Main Committee chairs, and delegates have been actively seeking “compromise
language,” it is important to not lose sight of what an ATT was intended do—to
set legally-binding, comprehensive standards for the trade in conventional arms
in order to address the many security risks related to the illicit and
irresponsible trade in these weapons.
Compromise to any extreme—whittling down
the text so much that it would fail to set common standards to which all states
parties would be accountable; or including qualifiers on every element of the
treaty so that few existing standards could be considered applicable—will inevitably
undermine the treaty’s ability to have an impact on the consequences of the
poorly regulated arms trade.
A balance between the overly-simplified
and the overly-qualified must be struck such that the ATT will have a real impact
on both the ground and in the national practices of transfer authorizations. A
simple set of “recommendations” or “guidelines” for the arms trade is obviously
insufficient (the overly-simplified), as is a document that includes endless
qualifiers based solely on “national discretion” (the overly-qualified). As the
final week of negotiations is now under way, delegations must bear in the mind
that the ATT must set forth clear, uniform, and legally-binding parameters to
which states parties are to be held accountable when transferring conventional
arms. Anything less will have little chance of changing conditions on the
ground in the parts of the world that are most affected by the unregulated and
illicit trade in arms and, even worse, could have a negative impact on existing
international norms and processes.
The fluctuating trajectory of text on criteria
has shown that both of these ‘extreme’ scenarios must be avoided. The call for
a “simple, short, and easy to implement” ATT has been made by the permanent five
members of the UN Security Council (P5) from the very start of the preparatory
process. It is clear that something “simple and easy to implement” without the
appropriate structure and independence of legally-binding criteria will not
sufficiently contribute to the UN’s multilateral security framework and, in
turn, combat the dire consequences of the illicit and irresponsible trade in
arms. In contrast, in its most recent
form, the draft text on criteria has been elongated to include numerous qualifiers
(and, therefore, ‘loopholes’) driving the criteria away from fulfilling their core
mandate and diluting the commitment of refusing transfers where substantial
risk exists when applying any of the
parameters laid forth in the treaty.
New qualifiers in the most recent text
include the insertion of the phrase “a State Party shall assess whether, in its view, there is substantial risk”
(emphasis added). This drives a further
wedge between universal and state-specific criteria and adds another layer of
‘subjectivity’ to their implementation. The current text also includes a
provision that state parties “may balance the risk against the security
imperatives associated with authorizing the transfer.” This represents the most
radical ‘qualifier’ yet to the ATT’s mandate to provide international, legal
standards for the arms trade. As yesterday’s
ATT Monitor editorial noted, the
text does not spell out what this ‘balance’ would entail or which particular
circumstances would be taken into account, thus leaving a gaping hole in the
accountability structure of the parameters. Furthermore, clear and specific
provisions free of continuous qualifying phrases justified only by “national
discretion” are especially important if the ATT does not establish any substantive
role for an ISU or another authority to analyze implementation and give
recommendations as to how treaty provisions should be interpreted, as still
seems to be the case in the latest ISU draft text.
As delegations seek to finalize treaty
language this week, it is necessary to avoid a dangerous weakening of the text
through either overly simplified language or endless modifiers. Instead, the
ATT should create a legal mechanism that provides for a clear list of criteria
to be applied such that irresponsible transfers are prohibited and diversion
into the illicit market is prevented.
