Options versus obligations

by Ray Acheson, Reaching Critical Will of WILPF

  

On Tuesday morning, the president of the arms trade treaty (ATT) negotiating conference released the first draft consolidated text. Debate on the text ensued in the afternoon. As most delegations argued, the text is much too weak to achieve the goal that motivated this process in the first place: preventing and reducing human suffering caused by armed violence and conflict.

  

From its preamble to its final provisions, the treaty text is often vague and confusing, providing many loopholes by leaving things open to interpretation. The delegation of Liberia criticized frequent use of phrases such as “to the extent possible,” “where necessary,” and “appropriate measures,” and said governments must be willing to accept the responsibilities that come with a legally-binding treaty. The Mexican delegation likewise argued that it must be clear that the treaty outlines obligations, not options.

In other areas, the language is quite explicit in its provision of loopholes. For example, article 2 on scope only includes munitions as an item that could be regulated “to the extent necessary” to ensure that the national controls on the weapons covered are not circumvented by the export of munitions of those weapons. This essentially translates as, “a state can regulate the export of ammunition if it wants to”.

The Economic Community of West African States (ECOWAS), representing Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, and Togo, said that it cannot accept an ATT that does not include munitions and ammunition fully in its scope. The inclusion of ammunition was supported by almost all delegates taking the floor on this issue, except for the United States and China. As Liberian President Ellen Johnson Sirleaf said on 12 July, the ATT must regulate ammunition, “without which guns may be reduced to silence.”

The sections of the draft treaty relating to criteria and authorization of transfers are full of equally large gaps. For example, article 3 says that a state party shall not authorize a transfer “for the purpose of facilitating the commission genocide, crimes against humanity, war crimes constituting grave breaches of the Geneva Conventions of 1949, or serious violations of Common Article 3 of the Geneva Conventions of 1949.” Not only are the references to the specific Geneva Conventions too narrow, but circumstance in which a state would apply to import arms specifically for the purpose of committing genocide or any of the other crimes listed is a rather high threshold for prohibition. Transfers must be prohibited in the case of substantial risk of any of these crimes, just as they should be prohibited for substantial risk of violations of IHL and IHRL.

Violations of IHL and IHRL, however, are only included in the risk assessment process in article 4. As currently written, the risk assessment process would have to somehow balance the risk of violations of IHL, IHRL, or treaties relating to terrorism or transnational organized crime against the weapons’ potential contribution to peace and security. To suggest that weapons could contribute to peace is bad enough; but to suggest that a risk assessment should weigh a substantial risk of violations of IHL against what the exporting state views as a benefit to peace and security—a circumstance which, should be noted, is not defined in this treaty—would gravely undermine states’ existing obligations to ensure respect for IHL.

For the first time, the outcome of the risk assessment process clearly states that if a substantial risk is found, the authorizing state shall not authorize the transfer. This is a good step forward from previous language suggesting “presumptions” against authorizing the transfer. However, article 4 also specifies that the substantial risk would be “in the view of the authorizing State Party”. Arguably, this contradicts the requirement for an objective risk assessment, which would presumably be based on multiple sources of information. Furthermore, the requirement to not authorize the transfer is severely compromised by the reference to contributing to peace and security in the list of criteria. To address this problem, Nigeria and Uruguay suggested changing “contribute to peace and security” to “be used to undermine peace and security”.

Then there is the problem with article 5. It references items that should be included in the risk assessment process—the risk of diversion to the illicit market; risk of gender-based violence or violence against children; risk of corruption; and risk of adversely impacting development. Instead, these four criteria are in a paragraph that says when a state party is authorizing an export it “shall consider taking feasible measures, including joint actions with other States involved in the transfer, to avoid the transferred arms” from being used to these ends. The text does not indicate what measures this might entail, nor does it make such measures mandatory. But even more unacceptable is the suggestion that optional measures should be taken to avoid these consequences, rather obligating the state party to deny the transfer if there is a risk of these consequences occurring. All of these criteria should be fully included in a risk assessment process, the result of which is that if a substantial risk is found, the transfer shall not be authorized.

These are certainly not the only problems with the current draft text. Other articles in this edition of the ATT Monitor will address some of problems in more detail; others will be covered in subsequent editions as necessary. But the immediate take-home message is that substantial work must be done in the next three days in order to plug up the holes in this treaty. Speaking at a press briefing on Tuesday, Peter Herby, head of the Arms Unit in the International Committee of the Red Cross (ICRC), said, “All the core provisions of this draft treaty still have major loopholes which will simply ratify the status quo, instead of setting a high international standard that will change state practices and save lives on the ground.” If the treaty were to be adopted as-is, it would not only be a disappointing end to a long process aimed making a real difference in the lives of millions of people around the world but it could also make it more difficult to effect real change in the future.