by Katherine Prizeman, Global Action to Prevent War
On Thursday afternoon, the delegate of the United Kingdom presented a statement on behalf of the five permanent UN Security Council members (P5) calling for reorganization of the treaty text, in particular regarding the implementation section. This statement represents an unfortunate movement backwards in the path towards a robust and strong ATT that provides for clear international parameters for arms transfers.
During Thursday morning’s committee meeting on criteria and parameters, the Russian Federation first introduced the proposal that the criteria section be moved to the implementation section as part of national risk assessment and that such criteria “should not function in a legal, prohibitive nature.” Subsequently, the P5 statement reinforced this position in the afternoon asserting, a “practical proposal would be to move the Criteria or Parameters section and the Enforcement section to within National Implementation.” Movement of the criteria to the implementation or “national enforcement” section undeniably has both a legal and political effect on the robustness of the future ATT. The legal status of national implementation measures is surely different than standalone parameters and such a shift will have both an unfortunate and far-reaching effect on the treaty’s implementation.
This is a dangerous shift in the interpretation and approach to formulating strong, legally-binding criteria based on violations of human rights, international humanitarian law, gender-based violence, socioeconomic development, and organized crime among others. By placing under ‘national implementation’ the list of criteria required for states to use when assessing a transfer authorization moves us further away from the main purpose of the treaty—to develop international standards to regulate the arms trade to prevent, combat, and eradicate the illicit and irresponsible trade in conventional arms. Interpretation of the “criteria” would be left entirely to states parties under their own national mechanisms. This is insufficient. Such decisions to authorize must strive for the highest levels of accountability and transparency. States parties must be held accountable to an agreed upon, concrete list of parameters to prevent application of purely subjective criteria based on national interest for authorizing transfers. Without a clear distinction between parameters and implementation, there would be little difference between the manner in which the arms trade functions now without an ATT and how it would function with such a weak formulation of “commonly agreed international standards” hidden away in the national implementation section.
Codifying circumstances that would require the denial of arms transfers, in addition to those already required under international law such as arms embargoes, is essential in order for the legal framework provided for in the ATT to have a meaningful, significant impact on international peace and security. The criteria must function in a legal manner. As noted by several delegations during the committee discussion on criteria and parameters, this section is the cornerstone of the text and lies at the heart of what the ATT is trying to accomplish. Weakening its status as an independent, stand-alone set of parameters against which authorizations must be judged, and assuming it instead into national implementation would lead to a serious decline in ATT effectiveness. If the ATT is to have an impact on the lives of many suffering from the unregulated, irresponsible, and diverted arms trade, authorizations must be carried out with the highest levels of accountability and transparency assessed against a clear, consistent, and strong set of legally-binding criteria.
Regulating the arms trade through a list of items to ‘bear in mind’ in national implementation measures when conducting arms transfers is not enough. While states will maintain the right to exercise authority over decisions regarding whether a transfer may or may not be denied, there must be a clear, legal definition of criteria that must be used to judge that decision such that the rationale for such decisions is not left exclusively to national interpretation. The goal of an ATT is not to endorse any particular national parameters for the arms trade, but to establish universally-accepted international parameters.