by Ray Acheson, Reaching Critical Will of WILPF
The criteria for
decisions to transfer arms are among the most important elements of the arms
trade treaty (ATT). They provide the basis upon which transfers will be
regulated. They are also among the most contentious elements, as many governments
fear that if the criteria are comprehensive and the requirements for denial are
strict, the treaty will inhibit their ability to either sell or import arms. Some
exporters and importers have economic and political interests in ensuring that
the criteria and resulting obligations are neither comprehensive nor strict.
The draft
text on criteria released by the Chair of Main Committee I on Monday
morning seemingly addresses the interests of such exporters and importers, which
it attempts to balance against the concerns of those who genuinely want a
strong treaty that will make a difference in the unfathomable suffering caused
by the unregulated arms trade. Unfortunately, the draft text fails in some very
serious ways to ensure that the treaty will be able to make such a difference.
As currently written, in fact, it could actually undermine the ATT’s entire raison d’être. Such text, if adopted,
would be a step backwards.
The draft text
prohibits transfers if they are “inconsistent with the goals and objectives and
principles of the Treaty”. It calls for risk assessment processes to analyze
the transfer’s potential affect on human rights, international humanitarian
law, and other issues. This would appear to mean that if the goals, objectives,
and principles of the treaty are sufficiently strong in emphasizing the
reduction of human suffering, the treaty should outlaw all transfers that are
deemed likely to enhance such suffering. Yet the draft text merely says, “Where
substantial risks exist, there shall be an overriding presumption against
authorization.” This language is substantially weaker than provisions suggested
by many delegations, which would stipulate that if the transfer fails to meet
the treaty’s criteria, it “shall not be authorized”.
If the treaty
does not prohibit outright arms transfers when there is risk that the weapons
will be used to commit acts of genocide or war crimes or gender-based armed
violence, etc., it will not only fail to ensure consistent application of the
treaty but could actually undermine attempts to sufficiently regulate arms
transfers. In a future in which an ATT with only an “overriding presumption”
has entered into force, an exporting state would merely have to demonstrate
that it has considered the risk of the transfer in order to be in compliance
with the treaty. The state’s export licensers could tick the relevant boxes,
but they or the ministers responsible for authorizing transfers could allow
other political or economic interests to override the findings of the risk
assessment. If challenged by another government or civil society groups over
making an irresponsible transfer, the exporter would merely have to provide
documentation that they undertook a risk assessment, not that they followed its
logical conclusions. This would in fact make the treaty detrimental to preventing irresponsible arms transfers, as it would
provide legal cover to the governments involved in the transfer.
The draft
text also introduces a new concept of “mitigation measures”, which the
competent national authorities of a state party would be required to take.
However, the document does not indicate what such measures would include. It
also does not indicate if they would have to take place before or after a
transfer has been authorized—if there is a possibility of resolving some of the
exporting governments’ concerns after
a transfer has occurred, this would seriously curtail the ability of the
governments involved in the transfer to ensure that the agreed remedies are
properly implemented.
Another issue
with the draft text, succinctly highlighted by CARICOM, is that it relies
exclusively on the decision of the exporting state to determine whether or not
a transfer is conducted. There is no right or obligation of states involved in
transit or transshipment activities related to the transfer to contribute to
the risk assessment or “mitigation measures,” or to have a say in whether or
not the transfer is authorized. One of the main concerns from a great number of
delegations throughout this conference has been the general lack of balance
between exporters and all other states. This is a major problem for those
countries that have a stake in regulating the arms trade but are not major
producers or exporters of weapons. Transit and transshipment countries need to
be involved in making decisions about transfers that will go through their
territories in order to ensure weapons are not misused or diverted to
illegitimate end-users. They must have a voice in determining whether the
transfer is made, as they could provide a more objective and informed
understanding of the risks of the transfer than the exporting state. This
concern is also relevant to the implementation paper discussed in the afternoon
open session; as the delegations of Ecuador and Mexico argued, notification of
the authorization of transfers must be given to relevant transit and
transshipment states so that they can adequately fulfill their responsibilities
in helping to prevent diversion.
Finally, the
draft text is not sufficiently comprehensive in the criteria it lists in the
section on risk assessment. It does include serious violations of international
human rights law, international humanitarian law, and international criminal
law, as well as the undermining of peace, security, and stability; acts of
aggression or other breaches of peace; acts of transnational organized crime or
terrorism; and risk of diversion. However, it does not include provisions on
poverty or socioeconomic development, gender-based armed violence, or armed
violence in general. Many delegations have consistently called for the
inclusion of these elements; at least fourteen governments have insisted that
gender-based armed violence be included as a specific criterion in the treaty. All
of these criteria are necessary to ensure that the treaty meets its goal of
reducing human suffering.
All
of these issues will have to be resolved in order of the ATT to be a truly
effective instrument. More importantly, some of these issues could actually
undermine the ability of the international community to regulate the arms trade
by providing cover for irresponsible transfers. All effort must be made now
during the negotiations to prevent this from happening.
