by Dr. Robert Zuber, Global Action to Prevent War
One of the important issues impacting these negotiations is the degree to which punitive sanctions should (or will) have a place in the final treaty. Among the many relevant interventions made by delegates on Monday, the Indonesian delegation reminded colleagues of its own preference that the ATT be “a confidence-building mechanism and not a sanction mechanism.”
In some parts of the UN's security architecture, 'confidence-building' is among its most successful components. The UN Programme of Action on small arms (UNPoA), for instance, is one of the UN instruments where trust and confidence-building are paramount, basing capacity support on the reliability and 'good faith' of funding and recipient states as well as key inter- or non-government resources (the UN Regional Disarmament Offices, Small Arms Survey, and others). Obligations are not binding nor are failures to fulfill obligations sanction-eligible. In their absence, the UNPoA has managed to do good and important work by blending increasing levels of confidence, recognition of common welfare, and timely pledges of needed resources.
In other security areas, sanctioning plays a more prominent role, such as when the UN Security Council seeks to address the threat of mass atrocities or to a lesser degree when the Human Rights Council or other treaty bodies (e.g. the Committee on the Elimination of Discrimination against Women) review the human rights performance of member states. Indeed, in situations where violence and abuse rise to unacceptable levels, the sanctioning function of the UN generally has a higher degree of understanding and support. The International Criminal Court is perhaps the ultimate UN sanction at present, but there are certainly other coercive measures—controversial and not—that states have used (and sometimes misused in our view) in an attempt to modify or divert the behavior of abusive governments.
So the interaction between confidence-building and sanctioning falls on a continuum. And since we are now negotiating a treaty rather than merely creating a norm for behavior change, it does not seem sensible that the sanctioning function can be completely ignored. The Indonesian delegation is right of course. Confidence-building must be the ultimate objective—necessary both to arrive at a treaty and to continue to modify and strengthen the treaty over time. But a treaty that bears absolutely no consequence for behavior inconsistent with stated obligations is itself inconsistent with common UN understanding of how treaties function and what behaviors they compel.
India and other delegations have urged the working committees to quickly move past statements to direct negotiation of suggested text. Given the number of days that have already passed from the schedule, this is probably wise counsel. It will be interesting to see whether or not sufficient 'confidence' has been built up in the negotiating room to achieve consensus on concrete text, 'rolling' or otherwise. It will also be interesting to see whether or not delegations can navigate a treaty process that is constitutionally more than norm setting and thus must supplement confidence-building with some preliminary measures and capacities to highlight and even sanction transfers with high diversion potential.