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.
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.