Tuesday, July 24, 2012

Avoiding extremes: the overly-simplified and overly-qualified

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.