Thursday, July 26, 2012

Not losing sight of objectivity and purpose

by Katherine Prizeman, Global Action to Prevent War

The compilation text offered by the president of the arms trade treaty (ATT) conference on Tuesday offers unfortunate gaps in objectivity and makes for a treaty that will provide far too much cover for irresponsible and diverted transfers. The question that has continuously plagued these negotiations is how much and how meaningfully the treaty will change national assessment practice in order to prevent the illicit and irresponsible trade in conventional arms. The lack of common international standards for regulating the international trade in conventional arms must be rectified, but it is not in and of itself enough to warrant adoption of a treaty that does not sufficiently address the humanitarian consequences of the illicit and poorly regulated trade. 
Treaty provisions that are not sufficiently objective, particularly those related to risk assessment, and that are not complemented by an adequate implementation structure, will not bring about a legally-binding, effective ATT that must do much more than regulate trade, but will have real impact on the ground for those societies most seriously plagued by armed violence. A mechanism that makes little meaningful difference to national assessments of transfer applications is not worthwhile and could even undermine existing, multilateral norms and mechanisms.

As noted in paragraph 2 of the preamble in the President’s text, the UN Charter promotes “the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources” (emphasis added). Moreover, paragraph 7 of the draft preamble recognizes “that development, human rights, and peace and security … are interlinked and mutually reinforcing.” It is essential not to lose sight of these principles in crafting the final treaty text. An ATT will only be as effective as its implementation, particularly in regards to how its obligations affect national assessment of authorizations. Adopting a weak legal mechanism riddled with clauses undermining objectivity in a treaty that does not address the aforementioned linkages and principles would be a serious disappointment.

The President’s text offers several glaringly obvious provisions that do not contribute to the legal objectivity that a meaningful ATT requires. Paragraph 4 of article 2 calls for the maintenance of a national control list of the items covered under the scope “as defined on a national basis”. Meanwhile, sub-paragraph c of section 2 under article 4 lays forth the criterion “contribute to peace and security,” thus representing a serious gap in objectivity. Unlike the other criteria, which are “negative” factors of assessment, this criterion provides room for states parties to assert that a transfer would somehow (as the basis of this assessment and circumstances to be taken into account are not detailed here) “contribute to peace and security” thus rendering the authorization “legal” under the ATT. Moreover, the entire section on “Additional Obligations” fails to provide the level of legality and objectivity that should be enshrined in the parameters. In particular, diversion and associated corrupt practices should be standalone criterion in the core set of parameters. Eradication of diversion is a central goal and objective of the treaty and should not be only an activity that states “consider taking feasible measures” against once the transfer has already been authorized. Substantial risk of diversion should be an objective, legally-binding criterion that would serve to prohibit a transfer. It is clear that objectivity in scope and criteria are so vital to the successful implementation of the Treaty, that it would be wise to include a provision that prohibits reservations related to these sections, a position supported by Mexico throughout the negotiations.

Finally, article 6, paragraph 2 provides for a serious gap in the legal implementation of the treaty’s obligations. The provision states that “this Treaty shall not prejudice previous or future obligations … and shall not be cited as grounds for voiding contractual obligations under defense cooperation agreements.” This provision ostensibly permits a state to authorize an export, even if it has been shown that substantial risk exists related to any of the criteria, if that export has been agreed in a contract. This provision does not even stipulate that such a contract would need to have been signed before entry into force of the ATT.

As negotiations come quickly to a close and a final text is presented for adoption, vigilant attention must be paid now to eradicating provisions that weaken the objectivity and legality of the treaty and fail to contribute to the purpose of the ATT to combat and eradicate illicit and irresponsible transfers in an objective and consistent manner.