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.
