by Ray Acheson, Reaching Critical Will of WILPF
On Thursday
morning, a battle broke out during negotiations of the arms
trade treaty (ATT) over whether or not the criteria for assessing the risk
of arms transfers should be buried in the national implementation section of
the treaty, and, whether or not identification of a substantial risk should
result in an automatic denial of the transfer. These debates are central to
determining whether the ATT will be a document that strengthens or undermines
the rule of law. If it is the latter, the whole point of developing an ATT will
be lost.
There were
several issues of concern with this draft. One was that the parameters section
only stipulated that states shall make risk assessments to ensure a transfer
would be consistent with the treaty—it did not suggest what the appropriate
action is if a risk is identified.
Many countries noted the failure of the
draft to make a connection between the risk assessment and criteria on the one
hand and the decisions states should make on the other. Delegations including
those of Austria, Australia,
Costa Rica, Denmark, European Union, Germany, International Committee of the
Red Cross (ICRC), Ireland, Japan, Mexico, Portugal, and Switzerland said the
treaty must stipulate that state parties “shall not authorize” the transfer if
substantial risk based on criteria is identified through the mandatory risk
assessment process. The ICRC pointed out that if transfers are allowed to take
place despite knowledge of substantial risk of violations of IHL, this would
undermine states’ existing obligations under the Geneva Conventions to “ensure
respect” for IHL.
Despite this,
the US delegation emphasized that it will not accept a “shall not” clause, nor
even a “presumption” against transfers upon identification of risk. The US
representative said her country operates under a policy of exercising
“particular restraint” in the case of a risky transfer and would not accept any
stricter language in the ATT.
A second
issue of concern was that the draft only required state parties to deny an
export if it would “violate the provisions of the treaty” or “relevant
obligations under international law”. Several delegations argued this was too
vague and called for clarification as to which “provisions” and “relevant
obligations” are being referred to in this context. Costa Rica, France, and
Germany said this paragraph would have to include explicit references to items
such as IHL, IHRL, and international crimes. But then the question remained,
why not link the requirement of transfer denial to the list of criteria?
A fourth issue
concerned the implications of moving the criteria to the section on
implementation. This move was originally
proposed by the P5 on 12 July and was supported by Brazil, India, and Syria.
However, with the introduction of this change on Thursday, delegation after
delegation argued this would detract from the ability of the ATT to set
international legally-binding standards for arms transfers, which is the
overall objective of the treaty. If criteria are a matter of simply
implementation, they are implicitly a matter for national discretion rather
than international scrutiny. The implementation section of the treaty deals
with how the treaty will be
implemented, not what it will
implement. Therefore, the criteria must be a separate section.
A great deal
of states declared this draft as undermining the very purpose of an ATT. In a
joint statement, Estonia, CARICOM, Colombia, Denmark, Finland,
Fiji, Ghana, Ireland, Liberia, Mexico, New Zealand, Niger, Nigeria, Norway,
Palau, Papua New Guinea, Samoa, Switzerland, and Vanuatu argued that the criteria section “is an essential part of the over-arching,
global framework for the treaty,” emphasizing, “It is part of its universal
framing in much the same way as its principles, or objectives, are.” Several
other states, including Chile, Germany, Japan, Malawi, and Peru, agreed with
this assessment.
The outcry against changes to the
structure and content of the text on criteria led the Chair to release a second
draft text at 17:00. This text put
the criteria list back in the parameters section. It also finally added
gender-based violence to the criteria. As Iceland’s delegation noted in the
morning, at least 15 member states had demanded its inclusion, yet it had not
appeared in the text. The new text now includes use “to perpetrate or
facilitate acts of gender-based violence, and violence against children” in the
risk assessment criteria. The new text also specifies that mitigation measures
must be taken prior to a final decision on the authorization of an export.
However,
problems remain. The draft now does make a link between the risk assessment
criteria and decisions on transfers, but it merely says “Where substantial
risks exist, there shall be a presumption against authorization.” This is not
strong enough. Even with a “presumption against authorization,” a state can
override the presumption if decides that other political or economic interests
are more important. This is a huge loophole in the treaty, an “escape clause”
that will allow transfers to occur regardless of the consequences if a state
decides other interests trump human security concerns.
The new draft
also retains the language stipulating that state parties shall not authorize an
export if it would “violate the provisions of the treaty” or the state party’s
“relevant obligations under international law”. Despite calls for these
“provisions” and “relevant obligations” to be explicitly described, both
elements remain vague and unspecified. And, despite many calls for the
parameters to refer to transfers rather than exports, in order to capture the
broad range of activities covered by the treaty, the text still only discusses
exports.
As the ICRC
noted, a treaty based on these parameters would undermine existing
international law. The text does not prohibit states from transferring weapons
even where there is a significant risk of serious violations of international
human rights law or international humanitarian law, or where weapons can be
used to facilitate commission of international crimes. Thus the text gives
states a list of suggested items to consider when deciding whether or not to
export weapons. It does not establish the highest common international
standards for governments to apply to their international arms transfer
decisions, but rather encourages them to deny an export when it would have
negative consequences while still allowing other interests to take precedence.
Venezuela’s
delegation argued on Thursday afternoon that we do not live in a world with a
just system of collective security, which is why an ATT should not inhibit the
ability of states to acquire arms. On the contrary, this is exactly why we need
a strong ATT. The lack of justice and security is what motivated the development
of an ATT in the first place. Unregulated arms transfers have done nothing but
undermine justice and security around the world. And in fact, the development
of an ATT, with robust criteria and scope, strong implementation mechanisms,
and effective transparency measures, would actually aid in the development of collective security. This is the reason
we have spent six years trying to develop this treaty. We must not let those
governments that put their ability to buy and sell weapons above the protection
of civilians to undermine the achievement of our objective.
