Friday, July 20, 2012

Criteria creep

by Dr. Robert Zuber, Global Action to Prevent War
My original intention today was to prepare an essay on 'curbing our enthusiasm' regarding the introduction of proposals that create new structures or introduce language that is not consistent with these negotiations or with established practice in other treaty bodies or international legal obligations.  There are several ways to undermine a treaty, only one of which involves a direct assault on the treaty itself. The others involve an assault on consensus through the introduction of concepts, structural recommendations, or placement of treaty elements that jeopardize consensus and timely progress. But we had a change of focus early on Thursday.
The first paper from the Chair of Main Committee I represented a major challenge to treaty coherence. GAPW has previously highlighted the folly of moving criteria into the implementation section – a position suggested primarily (though not exclusively) by the P5. In the absence of criteria that stand as a corrective to narrow or self-interested state interpretations, we are left with states possessing many fluid options but few binding obligations. Criteria as a function of implementation represents nothing more than guidelines – like replacing the Ten Commandments with the Ten Suggestions. We need neither commandments nor suggestions but legally actionable risk criteria that directly impact the decision making of major producing and importing states alike.
Criteria placed in proposed treaty text as a subset of implementation is not properly criteria at all and is not in keeping with the customary understanding pertinent to other treaty obligations. As we have mentioned often, an ATT must do its part to end diversion of transfers but must not set a dangerous precedent in the UN system for creating treaties that have, in practice, little more force than 'non-papers'.   Fortunately, the paper presented by the Chair later in the day represents, in our view, a much more competent understanding of the role of criteria in a treaty.  We strongly urge that this formulation carry the day.