Monday, July 23, 2012

Mitigating circumstances

by Dr. Robert Zuber, Global Action to Prevent War
The term ‘mitigation’ has been raised often in the past few days of the ATT negotiations, specifically referring to the means by which exporting states might help bring questionable recipient states ‘up to code’ in order to legitimate a decision to transfer weapons.  Can an exporting state actually be encouraged within a treaty framework to work with a potential state customer to ensure that weapons sold by a company under its jurisdiction will not be diverted to uses inconsistent with treaty criteria, including international human rights law? This week, it will be up to diplomats to decide the form by which and the extent to which mitigation can and should constitute a treaty obligation.
In conventional usage, mitigation has another meaning relevant to our work here, related to the circumstances that lead to the ‘softening’ of an opinion or judgment, whether legal or common. Within a criminal legal framework, mitigating circumstances can affect trial verdicts, but most often affect sentencing.  In the personal domain, such circumstances affect (or should affect) the harshness of our judgments as well as our willingness to compromise when options, perspectives, or values differ. 

In this last sense, mitigation is an important negotiating principle, one which will need to be liberally deployed this week in order to bring this treaty process to a successful conclusion. 

There are times when ‘mitigation’ gets confused with kinship or affinity.   We often employ special ‘rules’ that apply to members of our own family but not to others, that cause us to accept rude or annoying behavior in friends that we would never accept in acquaintances, or that allow us to overlook policy or financial transgressions in allies that would make us furious if undertaken by adversaries. We routinely indulge mitigating circumstances based on the strength of our personal biases and professional allegiances more than on the complex and compelling nature of the circumstances themselves.   

As final negotiations ensue, it is critical that sensitivity to circumstances take precedence.  Diplomats understand the background for why delegations hold the positions they do during formal debate. But they also know how to see behind the seemingly impenetrable policy veil to ‘softer’ and more pliable positions. It is this combination of understanding and skill that can and should form the basis for the intense ‘give and take’ that we anticipate will lead to final treaty language. 

From what we have seen and heard, the culmination of these treaty negotiations is unlikely to satisfy any state or NGO fully. However, on the assumption that delegations are willing to soften policy judgments and remain sensitive to circumstances that can needlessly exacerbate policy conflict, a workable treaty can come to pass. In this context, we wish to remind delegates of two things: First, permitting consensus on treaty language does not presume that states will thereby accede to the treaty, let alone ratify it in national legislatures. States can (and should) show veto restraint regarding language to which they have objections knowing that they retain options to distance themselves from the final outcome if national interest requires it. Second, a successful ATT will become part of the UN’s security architecture and as such does not need to break new ground in order to be legally (and politically) actionable. Indeed, the more that treaty language can reference existing UN-sanctioned obligations, texts, and institutions, the more likely that a final treaty can both achieve broad support and have a sustainable impact on diverted transfers.  

Note: We remain grateful to the many diplomats from missions and capitals who are committed to persevering through this difficult negotiating process until we reach consensus on final treaty language.   Many of the NGOs who have gathered around the negotiating room will remain on site for the next week in case delegations want additional consultation.  Global Action will be ‘on call’ as well and can be reached at: or 212-818-1815.