Thursday, July 19, 2012

Final provisions with long-term effects

by Katherine Prizeman, Global Action to Prevent War
Tuesday afternoon’s discussion of final provisions illustrated just how important these seemingly ‘organizational’ and ‘technical’ matters are to a successful ATT process. Allowances for reservations and amendments will undoubtedly have a significant impact on how robustly and uniformly the Treaty will be implemented and, in turn, how effective it will be in preventing the irresponsible and illicit trade in conventional arms. Moreover, reservations related to scope and criteria would be particularly alarming given the nature and intent of the ATT’s obligations. Likewise, provisions for Review Conferences are essential to the long-term success of the Treaty. Incorporating a concrete review process is imperative in order to establish regular meetings of states parties that can assess and adjust the ATT to better reflect evolving security circumstances. Such a process would provide opportunities to make the treaty stronger both in its provisions and implementation. 
Perhaps most importantly, the provisions for entry-into-force (EIF) will have a direct impact on not only when the Treaty will enter into force, but also (based on the number of ratifications required) how universally its provisions will be implemented. As noted by the delegation of Costa Rica, provisions that facilitate rapid and widespread EIF should be a priority. A Treaty that is seeking to craft international standards for the trade in conventional arms by its nature requires widespread, if not universal, adoption. However, this desire for universality must not entirely stifle the opportunity to begin a process of implementing uniform arms transfer standards. It will be important to strike a balance between the need for rapid EIF and ensuring participation is widespread enough to guarantee that the Treaty’s implementation is meaningful in achieving treaty goals and objectives.

While some delegations have proposed a single-number formulation of approximately 60, reflecting nearly one third of UN membership, others including Mexico, Costa Rica, and CARICOM have supported a smaller formulation of 30 ratifications. Some delegations have also called for a qualitative provision for EIF requiring that the “major exporters and importers” of arms be among those ratifications required for EIF. While the logic behind including such a provision in the EIF requirements makes sense for a treaty aimed at setting standards for arms transfers, it would be difficult to identify those “major” arms traders in an objective manner in the context of a legally-binding treaty that would be acceptable to all member states. Therefore, it would be wise to seek as many ratifications as possible without placing too much emphasis on exporters or importers as separate categories of signatories. It is important to communicate in all provisions of the ATT that transparent and robust transfer regulations are the responsibility of all states.

The majority of treaties dealing with international humanitarian law, human rights, and international peace and security require between 20 and 35 ratifications for EIF with the major exception being the Chemical Weapons Convention, which required 65. For example, the Convention on Cluster Munitions required 30 ratifications and the Convention on Prohibitions or Restrictions of the Use of Certain Conventional Weapons required only 20. There is, of course, the case of the Comprehensive Test Ban Treaty (CTBT) that requires that 44 specific nuclear technology holder states sign and ratify the treaties before EIF. As such, the CTBT has not yet entered into force and, as a result, remains outside the body of international law because of a hold-up on ratifications of a very small (8) number of member states. This type of scenario must be avoided for the ATT. Rather than waiting out a series of meetings on “facilitating the entry-into-force” of the ATT, states parties that have ratified the Treaty must take forward these legally-binding regulations, encouraging universal participation, but not being limited by the lack of it.

Identifying a reasonable EIF formula is a challenge to those crafting all new treaties and conventions and the ATT is no exception. In light of this challenge, the EIF provisions must be understood as facilitating the long-term success of the ATT so that legally-binding, international standards for the trade in conventional arms are implemented as soon as possible rather than being held up due to a lack of sufficient ratifications. If the single-number formulation is kept at a reasonable level, states parties that have signed on will be able to begin implementation of the Treaty’s provisions while encouraging others to do the same.