Friday, July 20, 2012

Preamble, principles, objectives, and goals?

by Katherine Prizeman, Global Action to Prevent War
As the negotiations for an arms trade treaty (ATT) continue for a third straight week, the urgency for compiling and agreeing on treaty text intensifies. Delegations have been busy discussing the various proposed sections of the treaty (including an intense discussion around criteria throughout Thursday’s open meetings) and attempting to solidify each section so that a full text will be possible by the conclusion of next week. The discussion over the preamble and principles as well as the goals and objectives has been particularly difficult given the complexity of this treaty process. As has often been noted by delegations and civil society alike, the ATT is of a unique nature in that it is not merely a trade treaty nor is it purely a humanitarian instrument. Unlike the Cluster Munitions Convention of 2008 and the Anti-Personnel Landmines Treaty of 1997, the ATT will not ban one individual category of weapons nor will it disallow the trade in conventional weapons. Therefore, the ATT represents a fusion of dual goals: arms control through regulation as well as humanitarianism related to human suffering caused by the unregulated trade in conventional arms. This duality presents a particular challenge in drafting the beginning sections of the treaty, which will ultimately present the lens through which to interpret the remaining articles, most importantly the criteria and implementation sections.
The Chair of Main Committee I has proposed treaty text related to both preamble and principles and goals and objectives. The discussion around these texts has focused, in part, on the nature of these sections and what exact purpose they will serve in the text. This is a conversation as important as the substance of the text insofar as these sections will determine how states parties will interpret and ultimately implement the actionable elements of the treaty, particularly how seriously state parties will treat assessment criteria. Some delegations have expressed support for merging the preamble and principles section. Both the Cluster Munitions Convention and Landmines Treaty provide for only a preamble that notes the incentive for pursuing the treaties as well as recalls the principles of international humanitarian law and related conventions and resolutions. Likewise, the nuclear Non-Proliferation Treaty (NPT) includes a preamble that lays forth the reasoning for pursuing non-proliferation as well as affirms the principles of “peaceful uses of nuclear energy” and non-threat of force. Nevertheless, as a result of the complexity of the ATT’s intentions, a separate section on principles could be useful to ensure proper and consistent implementation of the Treaty by states parties.

In the ATT context, the preamble and principles, as in other instruments of international law, provide the rationale for why member states are pursuing an ATT—to prevent, eradicate, and combat the irresponsible and illicit trade in conventional arms. It is essential to clearly outline this motivation so that this purpose is made manifest in the subsequent treaty text. There is also still unease among delegations on how to reference the UN Charter, i.e. whether to reference particular articles or mention it in more general terms. Some delegations, such as Mexico, have warned against selectivity in referring to the Charter’s principles, noting that the Charter takes precedence over all other treaties and conventions crafted under UN auspices. Nonetheless, given the nature of the ATT and the sensitivity it provokes around national sovereignty related to self-defense and arms acquisition, the most relevant principles of the Charter (such as self-defense, right to regulate arms internally, and the right to territorial integrity) could be referenced in the principles as a means to ensure that states parties do not feel that their sovereign right to trade in arms is threatened (prompting states to ‘walk away’ from the Treaty or resist ratification) and instead focus on preventing diversion and irresponsible transfers, which should be the Treaty’s true purpose.

The question then becomes: how do we differentiate between the preamble and principles and the goals and objectives? While the preamble and principles ‘set the stage,’ the goals and objectives will play a crucial role in implementation of the treaty. As previously noted, the ATT is a unique instrument that seeks to regulate a trade, but with a view towards combating the dire humanitarian consequences associated with irresponsible and illicit arms transfer. Bearing this in mind, the goals and objectives will drive implementation and risk assessment. Therefore, these goals must be ironclad and comprehensive so that states “shall deny a transfer” if it is inconsistent with the goals and objectives of the treaty. It cannot be only those in violation of the goals and objectives as this indicates only that which goes directly against it and, therefore, is too limiting.

Strong goals and principles will be the linchpin to ensuring robust application of the parameters. The challenge of agreeing on precise treaty language is formidable, especially in light of the distinctive nature of the ATT.  Treatment of these sections of the treaty will impact greatly the effectiveness of its future implementation.