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.