Wednesday, July 18, 2012

Deciding on criteria: achieving the greatest impact on human suffering

by Maj Rørdam Nielsen, Global Action to Prevent War
The Chair of Main Committee II on Monday morning handed out his paper on Criteria/Parameters for the arms trade treaty (ATT). This paper features some of the main ideas of the President’s 3 July 2012 paper, to which states seeking an ATT with a strong humanitarian focus should be alerted. At the same time, the paper incorporates some new ideas that can potentially enhance the treaty’s ability to set universal standards for the arms trade.

On the one hand, the Criteria/Parameters paper is still divided into a section of prohibitions and a section on risk assessments of parameters, the latter of which ends with a provision stating, “Where substantial risks exist, there shall be an overriding presumption against authorization.” Another idea that has been preserved from the 3 July paper is that the “prohibition” provision still applies to transfers broadly, whereas risk assessments seem to be the responsibility of exporting states only.

As CARICOM, Switzerland, and Mexico noted immediately after the distribution of the paper, and as numerous delegations also noted during the debate on criteria on Thursday, the “overriding presumption” language is not strong enough. As the editorial “Negotiating an ATT with teeth” of yesterday’s edition of the ATT Monitor argued, if there is a “substantial risk” that the transfer will be “used to commit or facilitate serious violations of international human rights law and international humanitarian law,” it is crucial that such a transfer should simply not be authorized. The alternative, that a state could still legally allow such a transfer, would jeopardize the humanitarian rationale behind the treaty, such as is stated in UN General Assembly resolution 64/48. It seems difficult to justify having an ATT that does not explicitly require state parties to deny such “substantial risk” transfers.

On the other hand, the Criteria/Parameters paper entails a potentially beneficial effort to accommodate many countries’ concerns regarding politicization of the application of criteria. The new paragraph 4 sets out that the criteria shall be applied “consistently in an objective manner, taking into account all credible relevant information.” Both “objective” application, as far as the term refers to an assessment based on observable circumstances without prejudice to specific state-to-state relations, and “consistency,” denoting that decisions will be made in a predictable manner, are of great importance. It is not only key to the ATT’s credibility among states, but also essential in ensuring that the treaty fulfils its humanitarian purpose. The provision, however, could be more specific in defining “credible relevant information”. For example, the treaty could specify that such information should rely on multilaterally agreed mechanisms, including relevant UN agencies as suggested by the Arab Group and others. Information from consultations with stakeholders, as proposed by Mexico on Monday, could equally be taken into account, provided that any delay arising from such consultations would not be used as an excuse for allowing any transfers to pass uncontrolled in the meantime.

Another significant change in the Criteria/Parameters paper as compared to the 3 July paper is that the criteria relating to corruption and “adverse economic impacts” (or development) have been removed, while new criteria relating to regional, sub-regional, or international stability and to terrorist acts have been added. This could be seen as accommodating the request from some delegations for ensuring “state security”. However, “state security” should not be prioritized over “human security” and from a civil society perspective it is a matter of great importance that arms transfers do not become “subject to corrupt practises” nor have “adverse economic impacts” in the receiving states.

Bearing in mind that the ATT’s success depends not only on strong language but also on attaining a sufficiently broad range of ratifications, delegations should try to balance the concerns of some states about the treaty being “too robust” with those that want it to be as robust as possible. Where possible, ATT proponent states could try to find ways of incorporating the missing criteria in a manner that the concerned states can accept—e.g. by tying the assessments of development effects to judgements from multilaterally agreed mechanisms. However, governments should focus on ensuring that the treaty includes criteria on the issues that are most critical to achieving its humanitarian objectives, and that the treaty specifies that if risk is assessed on these criteria, transfers must be denied. The best guideline for determining how to make these choices must be to evaluate how the ATT will have the greatest impact on its main goal: to reduce and prevent human suffering.