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.
