by Ray Acheson, Reaching Critical Will of WILPF
On Thursday afternoon, the president of the arms trade treaty (ATT) conference released a new draft text. After two days of nearly round-the-clock negotiations, however, the new text is still full of potential loopholes. Several areas of the text need to be amended before this treaty could be considered as a step toward plugging holes in the poorly regulated arms trade.
Furthermore, this article appears to be inconsistent with article 6.3 of the draft treaty, as pointed out by the delegation of Zambia. 6.3 says that if, after an authorization has been granted, a state party reassesses the situation on the basis of new information and does find an “overriding risk” based on the treaty’s criteria, it may suspend or revoke the authorization. Article 6.3 must certainly be retained, but 5.2 must be deleted. As the Swiss delegation argued, governments cannot normally “contract out” of international treaties.
Another problem remains in article 4 and the national assessment mechanism for determining whether or not to make transfers. Article 4.1 stipulates that when a state party is considering whether or not to authorize an export, it shall assess whether that export “would contribute to or undermine peace or security”. There is indication in 4.5 that a risk of violations of IHL, IHRL, or terrorism can “override” a potential “contribution” to peace and security; however, a decision-maker could assess that the risk does not override such a “contribution”. This would undermine states’ existing obligation to ensure respect for IHL, among other things. There could be criminal or civil law implications of knowingly authorizing an export while there is a substantial possibility of violations of IHL and IHRL.
Article 4 also permits the possibility of establishing “risk mitigation measures” in order to cultivate the circumstances in which an authorization could be made. However, it does not specify that these measures must be undertaken before the transfer is authorized, which is imperative to ensure that the measures are indeed actually undertaken and that the risk is effectively mitigated.
Article 4 also continues to segregate criteria related to diversion, gender-based violence, violence against children, transnational organized crime, corruption, and development (article 4.6). Rather than including these in the risk assessment process that can result in a transfer denial, they are in a separate paragraph stipulating that when considering authorizing an export, states parties “shall consider taking feasible measures” to avoid the weapons being used to any of those ends. The text still does not indicate what measures this might entail, nor does it make such measures mandatory. As argued in the editorial in ATT Monitor Vol. 5, No. 16, all of these criteria should be fully included in a risk assessment process, the result of which is that if a substantial risk is found, the transfer shall not be authorized.
Ammunition is still not in the scope, despite the insistence of the majority of delegations. However, it is at least in the export section in article 6.4, which says that states parties shall establish and maintain a national control system to regulate the export of ammunition. Most importantly, when considering an export of ammunition, states would have to apply the criteria for risk assessment in articles 3 and 4. However, the elements that are included in the separate paragraph (4.6) are specifically excluded, as is also the case for assessments related to export of parts and components (6.5).
In addition, article 23 stipulates that when exporting to non-states parties, states parties “shall apply articles 3 and 4 to all exports of conventional arms within the scope of this Treaty”. As written, this would mean that the risk assessment criteria and the prohibitions would not apply to export of ammunition, parts, or components. This is a major loophole, but it also provides a disincentive to joining the treaty, as it could be easier to obtain ammunition, parts, and components by remaining outside of the treaty. Article 23 should in fact simply say that states that have ratified this treaty should not transfer arms to states that have not ratified the treaty.
The draft treaty also fails in becoming a robust transparency mechanism, as the provisions on reporting and record-keeping no longer require records to be made public. Records are stipulated to include export authorizations or actual exports of arms and, “where feasible,” details of imports, transit, and transshipments of arms. According to the current draft, the reports on exports must be submitted annually to an ATT secretariat, but this is not enough. These records must also be made public, as was provided for in earlier drafts.
The treaty’s “enforcement” mechanisms are still weak. Enforcement in international treaties generally does not refer to national measures. If the term is to be used here it should also include measures for international enforcement mechanisms, such as an appropriate channel for states to challenge transfers that are made despite wide recognition of a substantial risk that it violates the treaty’s criteria or other provisions. If this paragraph is to refer to national enforcement the title should be changed and it should require states parties to criminalize breaches of national law associated with treaty implementation.
Other problems from earlier drafts still remain. The scope is too narrow and does not capture many of the weapon systems used to commit atrocities around the world. The references to the Geneva Conventions in article 3.3 are still too narrow. Furthermore, article 3.3 still only prohibits transfers when the weapons are “for the purpose of facilitating the commission of genocide, crimes against humanity, war crimes,” etc (emphasis added). This threshold for prohibiting transfers when faced with these crimes is much too high.
According to the International Committee on the Red Cross, “article 3(3) is very restrictive and is not an accurate reflection of international law. In order to effectively encapsulate existing law, the text would be strengthened by changing it to: A State Party shall not authorize a transfer of conventional arms within the scope of this Treaty if the transfer would facilitate the commission of genocide, crimes against humanity, war crimes, including grave breaches of the Geneva Conventions of Common Article 3 of the Geneva Conventions of 1949.”
There is still no provision for victims’ assistance or even reference to existing obligations in this regard. The draft text’s measures on regulating arms brokers are likewise insufficient, though a slight improvement notes that registration or authorization of brokers “may” be required. The activities covered in the treaty’s scope are still limited to those related to “trade,” which means that weapons that are transferred as gifts or loans or through military assistance programmes could be exempt from the regulations mandated by the treaty. Furthermore, the term export is often used when the term transfer should be used to avoid loopholes.
These are not all of the problems with the draft. There are many others that need to be addressed, some of which may only be revealed once states parties begin implementing the treaty. Of course, the stipulation that all amendments must be adopted by consensus (rather than also having the option to adopt them by a 2/3 majority, as was the case in the previous draft), provides for very little flexibility in using the amendment process as a means for improving the treaty.
That said, there are a few improvements to the draft. For example, point 5 in the principles section notes states parties must act in accordance with the “duty to respect and ensure respect for international humanitarian law and to respect and ensure human rights”. This paragraph is imperative as a guiding principle for implementation of this treaty.
Indeed, this treaty, if adopted, must be interpreted in the broader context of existing international law. The provisions of this treaty cannot be read in a way to legitimize and make legal actions that would otherwise be illegal. Furthermore, using this treaty to provide cover for irresponsible transfers is not acceptable. A treaty designed to regulate international transfers of arms must have as its core objective the protection of human life and dignity, not the protection of economic or political interests associated with the arms trade.