Wednesday, July 25, 2012

Implementation and an ISU worthy of resources

by Katherine Prizeman, Global Action to Prevent War

The latest compilation draft text offered by the President of the arms trade treaty (ATT) conference is an attempt to incorporate the various proposals from the previous three weeks of deliberations into treaty language and lead the way to final adoption this Friday. The sections on implementation are of particular importance given the structure of the ATT, as implementation will be driven primarily by national responsibilities. Closing gaps in the implementation provisions is thus vitally important to the success of the treaty. 
The provisions related to “General Implementation” cover the basic concerns of applying the treaty in a “consistent, objective, non-discriminatory manner” as well as taking the “appropriate legislative and administrative measures necessary to implement the provisions of this Treaty.” A welcome addition to this section is the reference under article 6, paragraph 6 stating that if diversion is detected, states parties “shall notify the State or States Parties that could be affected by such diversion.” This provision could help directly address the consequences of diversion to non-authorized end-users, which will be critical for achieving the treaty’s objectives.

An alarming addition in this section, however, is article 6, paragraph 2 that states, “This Treaty shall not be cited as grounds for voiding contractual obligations under defense cooperation agreements concluded by States Parties to this Treaty.” This provision, therefore, would allow states parties to continue to transfer arms to “honor” contracts without due deference to changing political and security circumstances in the receiving state. As noted by the delegation of Liechtenstein on Tuesday afternoon, this is a serious loophole.

The division of implementation provisions governing export, import, brokering, and transit and transshipment is an important component of this text. It is essential that the treaty does not become only the responsibility of exporting states, but rather, the text must lay out the responsibilities for all states involved in arms transfers. Although the qualifier “where necessary” weakens the strength of the provision, article 8, paragraph 2 on imports does provide for some measure of accountability for importing states (although not enough). It requires that importers “shall put in place adequate measures that will allow them, where necessary, to monitor and control imports of items covered by the scope of the Treaty.” However, caveats such as “where necessary” mean the provision is somewhat weak; moreover, there is no indication of recourse to further action or accountability in the circumstance where a transit state disagrees with an export state on the terms or legitimacy of the transfer.

Although the provisions are qualified by national discretion regarding “feasibility” and “necessity,” the articles on brokering and transit and transshipment are important elements for detailing the responsibilities of all states involved in all types of arms transfers and, at the very least, these types of transfers are covered in separate sections. In particular, article 9 on brokering requires that states parties take “appropriate measures” to control brokering taking place under its jurisdiction. Nonetheless, the details of these “measures” are obviously lacking, which means their application will vary widely among states parties. Given how important brokering is to the arms transfer process, it is imperative that stronger measures on regulating brokers be mandatory in the ATT.

The sections on reporting and enforcement has room for improvement as well, as it is riddled with qualifiers such as “as appropriate” and “where feasible”. The text stipulates that records be kept for a minimum of ten years “or consistent with other international commitments applicable to the State Party.” Article 11, paragraph 3, notes that states parties “may report” to the Implementation Support Unit (ISU) on an annual basis regarding actions taken to address diversion, but the text does mandate that within the first year of entry into force, the state party must submit a report to other states parties on “relevant activities undertaken in order to implement this Treaty”.

The text also stipulates that states parties submit annually to the ISU a report concerning the “authorization or actual transfer of items included in Article 2, paragraph A1,” which will be made public by the ISU. Public records are a good step towards greater transparency in the international arms trade. However, , the provision on “enforcement’ in article 12 refers only to the adoption of national legislation and the vague reference to “appropriate national measures”. Enforcement is not generally used in treaties to 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 there being wide recognition of a substantial risk that it violates the treaty’s criteria or other provisions.

Meanwhile, the section related to the ISU provides for a “minimized structure” with “adequate staff” to “assist States Parties in its implementation.” This short section lays out the tasks to be assigned to the ISU, which are administrative, logistical, and technical. It does not include more substantive provisions related to objective oversight of national implementation, let alone the authority to ‘flag’ potentially illicit transfers. This implies very little independent functioning. Over the course of the last three weeks, member states have expressed their positions on both the nature of the proposed ISU as well as its financing and it seems that this latest draft text reflects these dual concerns by underscoring that the ISU will hold only administrative and technical responsibilities in a very nominal structure.

While member states have rightly questioned the funding sources for an ISU, the text does note that the “core costs” would be funded by states parties, as opposed to allocating funding from the regular UN budget, which would imply that such a structure would be housed under the UN Office for Disarmament Affairs. Some delegations have advocated for this intra-UN structure, including Ghana, Ecuador, and Brazil, but such a structure might be inappropriately placed in an office not mandated to specifically deal with arms transfers and without the ability to provide the objective implementation oversight that an ISU should provide. 

Despite a limited scope for the proposed ISU, the current text does take into account the possibility for an incremental increase in its tasks. Article 13, paragraph 3e notes, the ISU shall “Perform other duties as mandated by the Conference of States Parties.” Likewise, Article 21, sub-paragraph 2d, notes that the Assembly of States Parties shall “Consider the establishment of any subsidiary bodies as may be necessary to improve the functioning of the Treaty.” These are important provisions that grant flexibility to the ISU’s future functions so that it can adjust to changing security circumstances. This is a position of incrementalism that has been advocated by a variety of delegations, including the EU, Germany, Sweden, France, and Kenya.

Furthermore, as noted by the Mexican delegation, given the complexities of the ATT, specifically regarding its unique fusion of regulation of trade with a view towards addressing humanitarian concerns, the ISU should provide substantive support to assist states parties in implementing and navigating these complexities. In this context, and given its role in collecting and housing state reports, a useful contribution of the ISU could be, as suggested by the Uruguay delegation last week, the compilation and distribution of data and trend analysis of arms transfers given. The ISU should not be used merely for circulating information, but should also provide information. As the Ghanaian delegation affirmed, the ISU should not merely be a “post office”.

As noted by others throughout this process, implementation will be key to the effectiveness of the ATT. The ability of an ISU to provide oversight and sufficient enforcement of implementation obligations must be assessed not only in the immediate future, but (hopefully) in many meetings of states parties in the years to follow.