Tuesday, July 17, 2012

Criteria and mitigation measures

by Katherine Prizeman, Global Action to Prevent War
As negotiations continue on the criteria and parameters for the arms trade treaty (ATT), the Chair of Main Committee I issued a paper on Monday morning with suggested text for this section. As has been noted by several delegations, this section is critical for the ATT to be effective. The strength of the criteria, along with the consistency and robustness of their application (limiting loopholes and inconsistency in national risk assessment), will ultimately determine whether or not the ATT will accomplish its goal of preventing, combating, and eradicating the illicit and irresponsible arms trade.
The Chair’s paper divides the criteria into two sections—prohibitions under existing international and regional law and national risk assessment—and introduces the concept of “mitigation measures”. This concept is new to the ATT discussion insofar as it had not been addressed during the Preparatory Committee sessions. Thus far, questions regarding what particular measures would be considered or when such measures would be applied (before or after the assessment) have remained unanswered. The reference in the Chair’s paper notes only that states parties shall “take mitigation measures to ensure that the export under consideration is consistent with the goals and objectives and the principles of the Treaty.” Given the extremely general nature of this reference, it is plausible that such “measures” could function merely as a “catch-all phrase” for consultations between the exporting and importing states either during or after the authorization assessment.

While the Chair’s paper doesn’t provide enough detail on what “mitigation measures” would entail, the President’s Discussion Paper from 3 July 2012 lays forth a more detailed, but disconcerting, description of “mitigation measures” in the criteria section: “In circumstances where authorization is granted despite the existence of a substantial risk, a State Party shall take precautionary and preventative measures to mitigate such risk, including such things as working with the recipient country, suspending or delaying authorization, seeking further information or clarification regarding the transfer or attaching conditions to the transfer.”

The treatment of “mitigation measures” in the President’s paper clearly indicates that such measures would be enacted after an assessment was carried out and a transfer was approved despite the existence of “substantial risk” as evaluated against the preceding criteria. This is a dangerous interpretation of “mitigation measures,” insofar as these measures provide for an insufficient alternative to denying a risky transfer. The ATT should simply require that states deny transfers if “substantial risk” does, in fact, exist. There is a danger of relying too heavily on such “measures” and detracting from the weight and influence that the criteria should garner as standalone parameters for determining transfer authorizations.

Some delegations, including Malaysia and Sweden, have suggested moving “mitigation measures” to the national implementation section rather than the criteria section. Their argument is that the examination of transactions and the determination of whether or not to undertake mitigation measures it is a matter of national discretion. This argument has some validity. If implementation of the treaty’s obligations remain entirely under national control, then it would be wise to have a provision for “mitigation measures” in this section so that states parties are required to incorporate into their implementation strategies, prior to authorization, measures ensuring that exporting and importing states have sufficiently consulted each other on the proposed transfer and all relevant information exchanged so that irresponsible transfers are refused and the circumstances that would have led to the denial are identified and reduced.

Nonetheless, if “mitigation measures” are to be included in the criteria section, it is essential that they be clearly detailed and that all vague references to the “goals and objectives of the Treaty” are avoided. Without indicating specific measures to be undertaken and requiring that such measures be pursued before the transfer, the provision for such “measures” will provide for further movement away from the main purpose of the treaty—to develop and adopt universal and international standards for the arms trade. The criteria, and all its related components, including “mitigation measures,” must be clear and concrete as well as capable of being applied universally. For the criteria to function in a prohibitive, legally-binding manner that a robust ATT requires, such “measures” must be illustrated clearly in the text. Moreover, it should be clear how they would ultimately complement the larger scheme of criteria against which potential arms transfers will be assessed.