Wednesday, July 18, 2012

Reinforcing the role of criteria through national implementation

by Katherine Prizeman, Global Action to Prevent War
The text issued by the Chair of Main Committee II on implementation on Monday morning continues to be discussed as member states are grappling with issues such as national authorization systems, enforcement, and record-keeping. While the paper addresses many important components such as inspections and seizures (paragraph 16), criminal and civil penalties for breaches of national legislation regarding implementation (paragraph 17), and diversion (paragraphs 19–20), perhaps the most critical part of this section is that which deals with export and import, as these are the primary means of transfer that an ATT would cover.

It is essential that the national implementation section regarding export and import lays forth strong language that obligates states parties to conduct assessments according to the criteria provided for in previous articles of the treaty in an objective and consistent manner. The implementation section should clearly reinforce the role of the criteria in authorization assessments as both necessary and legally-binding. Implementation must not serve as a means of “softening” the strength and role of the legally-binding criteria through qualifying assessments with conditions justified only by “national discretion”.

The Chair’s text currently incorporates multiple qualifiers including “as requested,” “appropriate and relevant,” and “where necessary” in relation to export and import assessment. For instance, paragraph 6 states, “Each State Party shall conduct assessments, in accordance with the criteria/parameters as set out in Article XX, including end-user certification, as requested, and to verify the delivery to an approved end-user.” As noted by the delegations of Mexico and CARICOM during Monday afternoon’s plenary, the phrase “as requested” in paragraph 6 is unclear since it is referring to what is already noted as a requirement under the criteria section. If this phrase refers instead to the end-user certification, this too is an unfortunate qualifier that serves to dilute the strength of the exporting state assessment obligations. Although such an end-user certification concept would need to be more clearly illustrated regarding how it would be applied during assessments (as noted by the UK and Germany), it remains an important component of preventing diversion and should be required under national implementation provisions.

While the Chair’s text lacks some clarity and forcefulness, the President’s paper from 3 July 2012 provides solid language with regards to national authorization systems stating, “Each State Party shall conduct assessments whether to approve, refuse, suspend or revoke authorizations for the export of conventional arms under the scope of this Treaty, in accordance with the criteria set out in Article XX.” Although the provision in the President’s paper lacks reference to end-user certification, it does spell out the various options related to authorization “without condition” and clearly links state assessment to the criteria provided for in the Treaty.

Furthermore, paragraph 7 of the Chair’s text states that signatories “shall make available, upon request, appropriate and relevant details of the authorization … upon request prior to authorization.” While the debate over denial notifications and information exchange remains controversial, transparency related to transfer decisions, whether authorizations or denials, is at the heart of the ATT’s effectiveness. Qualifying information exchange regarding assessments by weakening its obligatory nature tempers the authority of the criteria against which the assessments are carried out. Likewise, as expressed in paragraph 10 of the Chair’s proposed text, importing states must also have access to information concerning potential authorizations from the exporting state such that information exchange goes both ways and assessments are based on the most consistent and credible information possible. Therefore, it would be wise to include an important provision from the President’s 2012 paper that states, “Importing States Parties shall take measures to ensure that appropriate and relevant information is provided, upon request, to the exporting State Party to assist the exporting State in its criteria assessment and to assist in verifying end users.” This statement appropriately incorporates the obligation of information exchange grounded in the criteria as well as end-user certification.

National implementation will be an important contributing factor to the Treaty’s effectiveness insofar as states parties apply Treaty obligations transparently and consistently. Nevertheless, it is essential to keep national implementation measures grounded in the criteria and parameters that must guide whether or not a transfer will be authorized.