Monday, July 16, 2012

Defining the scope, defining the purpose

by Ray Acheson, Reaching Critical Will of WILPF
Friday’s meetings marked the first concrete negotiations of the arms trade treaty (ATT) process. In the open meetings on scope, delegates had before them a draft text put together by Ambassador IJssel of the Netherlands, the Chair of Main Committee II. While the draft text was intended to be a step beyond the President’s 3 July 2012 paper in synthesizing states’ views, and while the negotiations were supposed to advance the process even further, by the end of the day the waters were as muddy as ever. Many delegations felt the scope was too broad and comprehensive while others felt it was too limited. Two issues proved particularly contentious: limiting the inclusion of small arms to those intended “for military use”, and deciding whether states should be able to come up with their own unique control lists. The resolution of both issues will have serious implications for the ability of the treaty to achieve its goals and must thus be resolved in a manner that gives highest priority to reducing human suffering.

Thus far, the insistence of a few delegations that the ATT not “interfere” with domestic possession or sale of firearms—most vocally Canada and the United States—has not seriously affected the development of this treaty. From the first UN General Assembly resolution in 2006 that kicked-off the process, no government has tried to argue that the treaty will address anything other than international transfers of arms. But during Friday’s meetings on scope, the unwarranted concerns that the treaty might do otherwise made it difficult to move forward constructively.

This misguided emphasis on “inference” with domestic issues meant that in the Chair’s draft text, the item on small arms and light weapons specifies “small arms for military use”. As many delegations pointed out, this is not an actual category of weapon. Small arms and light weapons are clearly defined in the International Tracing Instrument as any “man-portable lethal weapon that expels or launches … a shot, bullet or other projectile by the action of an explosive.” The only type of weapon the definition specifically excludes is antique weapons.

All small arms, regardless of their intended use, can be used to commit violations of human rights an IHL, acts of gender-based or sexual violence, or actions that undermine peace and security. Excluding any type of small arm because it was not specifically “designated” for “military” use is to undermine the core objective of the treaty: to reduce human suffering. Thus the vast majority of negotiators insisted this qualifying language be removed from the text and that no other such attempts be made to artificially limit the types of small arms included in the treaty.

The second, related, issue is that of national control lists. The Chair’s draft text says that state parties “shall establish, maintain, and publish a control list that shall include as a minimum the items that fall within the scope of this Treaty. The definitions of the items on the control list shall be the prerogative of states parties.”

There seemed to be a great deal of confusion about the nature of such a control list. Some delegations interpreted this as meaning that governments would be able to establish lists that had at least the weapons covered in the treaty but that it could include additional weapons if they wished. Others thought it was to allow flexibility so that importing countries could leave off weapons if they don’t regularly import them. Others still objected to the phrase “as a minimum,” arguing that the treaty will cover what it covers and that should be the extent of any control list.

There was an even wider gulf over the issue of definitions, with a clear division between those who want the treaty to define weapons and those who think there is not enough time in these negotiations to do so. The question of definitions is an important one. Until recently, most delegations seem to assume that the categories of the UN Register on Conventional Weapons would constitute a base for this treaty. Yet on Friday many delegations pointed out the problems of relying on the Register’s categories and definitions. For example, the Swedish delegation explained that the Register is limited to major combat systems, which, if used, would unproductively limit the scope of the ATT. Others argued the Register definitions should not be used because it is a voluntary, not legally-binding, mechanism.

Again, this issue must be resolved with a view to minimizing human suffering. Constituting the treaty’s scope as the minimum requirement, and having clear definitions for these weapons within the treaty text, would ensure that everyone is working off the same page. However, if delegations choose to stick with the current formula, they will need to develop much clearly language to avoid misinterpretation and to ensure that, as the treaty’s draft anti-circumvention clause states, all measures are taken to ensure that the goals and objectives of the treaty are not undermined.