by Ray Acheson, Reaching Critical Will of WILPF
After closed
negotiations Thursday night on the arms
trade treaty (ATT)’s goals and objectives, Friday’s open meetings returned
to the issue of criteria and parameters for arms transfers. The criteria and
the related decision-making process through which arms transfers will be
authorized or denied are arguably the most important aspects of the treaty.
They, along with the scope, will determine whether the treaty makes a
difference in reducing the consequences of the unregulated trade in weapons or
whether it permits the status quo to continue, but with an international treaty
providing cover for irresponsible transfers. This is why delegations
participating in the debate either sought to ensure the strongest or the
weakest possible standards in this section.
In the
morning the committee worked off the version released Thursday evening, and in the afternoon the Chair released
a slightly modified text based on the morning’s discussions.
While the majority of delegations participating in the debate demanded strongly
worded and comprehensive criteria for making risk assessments, some delegations
suggested watering down language or deleting specific criteria, expressing
concerns with the “subjectivity”. A few governments are skeptical of having a
list the criteria at all. The Egyptian and Pakistani delegations have routinely
questioned what information will be used as the basis for risk assessment and
who will make the decisions. However, as the Spanish delegation emphasized, the
treaty’s mandatory risk assessment process, based on a specific set of criteria,
is not about subjectivity but about ensuring arms transfers are not authorized
in circumstances of well-known violations of the criteria outlined in the draft
text.
This is why the
majority of delegations demanded strict language in the treaty that if a
significant risk is detected through the mandatory risk assessment, ATT state
parties “shall not authorize” the arms transfer. The wording in the revised
draft text released Friday afternoon still merely said, “Where substantial risk
exists, there shall be a presumption against authorization.” Most governments
in favour of a strong treaty have consistently argued that this is not strong
enough. The United States, however, has argued that either of these
formulations is too strong. It will only accept a provision requiring state
parties to “exercise particular restraint” if substantial risk is found,
arguing that “national security concerns” (i.e. political or economic
interests) must be able to take precedence over risks of violations of human
rights, IHL, genocide, war crimes, crimes against humanity, acts of aggression,
gender-based violence, violence against children, regional or international
stability, organized crime, terrorism, diversion to illicit markets or
end-users, or any other possible criteria.
In the latest
draft text produced after the weekend negotiations, the language of the
criteria section seems to have been modified to accommodate the US delegations’
concerns. According to a copy obtained by the author, the risk assessment
section text says that state parties “may balance the risk against the security
imperatives associated with authorizing the transfer.” It is not at all clear
what such a balancing act would entail—the text does not spell out any standards
for such an assessment nor circumstances in which one or other could or would
take precedence, leaving a rather large loophole for subjective interpretation
and application of the treaty.
Such an
“escape clause,” if written into the treaty, will undermine the rule of law. It
will undermine existing international humanitarian law, as pointed out by the
International Committee of the Red Cross on Thursday. It will make the ATT little
more than a piece of paper with a list of suggestions for governments to
consider when making decisions about arms transfers. It will make a joke of the
overwhelming need and desire to have strong international regulations for the
arms trade.
While it is
necessary to address governments’ concerns so that a wide range of states can
accept the ATT, care should also be taken that the treaty text is not so
watered down to be completely ineffective or worse, detrimental to existing
international norms and standards. In considering such concerns, delegations
should acknowledge that some countries are unlikely to ratify the treaty no
matter how weak its provisions. The United States is one such country—as a case
in point, it recently failed to finally ratify the Law of the Sea Treaty, despite
support for ratification of the Treaty from the US Chamber of Commerce and the
US Navy.
In opposition
to the continuous attempts to weaken the foundations of the future ATT, 74
governments delivered a joint statement to the conference on Friday
afternoon. Arguing that the ATT “will be judged by the strength” of its
criteria and scope, the 74 countries said that the treaty needs to prevent
authorization of arms transfers “where there is substantial risk that those
weapons would be, inter alia: used for, or facilitate, serious violations of
international law, including international humanitarian law and human rights
law; having a destabilizing effect or exacerbating existing conflicts; or
diverted to unauthorized end users.” They also emphasized the need for an ATT
that includes small arms and light weapons and ammunition in its scope.
By delivering
this statement before intensive closed negotiations were to begin over the
weekend, these 74 governments clearly demonstrated their commitment to ensuring
that the treaty does not result in a list of suggestions that will provide
cover for future irresponsible arms transfers but that it achieves the original
goal as set out in the UN General Assembly resolutions: “a legally-binding
instrument on the highest possible common international standards for the
transfer of conventional arms.”
Interestingly,
the 7 original co-sponsors of the UNGA resolution that began the ATT process—Argentina,
Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom—were
conspicuously missing from the list of 74 countries supporting this strong
statement calling for a robust ATT. Sources indicated that at least some of
these governments argued that it was “not the right time” for such a statement.
However, the 74 countries that did join the call clearly recognized that the
time was exactly ripe for such a clear and unambiguous stand against the
treaty’s dilution. Intensive closed negotiations were scheduled to take place
over the weekend, and negotiations this week are reportedly likely behind
closed doors without the possibility for civil society to monitor the
proceedings. Friday was the exact right time for countries that want a strong
ATT to reveal where they stand in relation to these negotiations. The world now
knows what countries are truly committed to achieving a meaningful and
effective treaty, and which are not.
In the end,
the ATT must be an effective mechanism for a) determining if an arms transfer
is irresponsible based on a specific set of criteria; b) prohibiting transfers
that would be irresponsible regardless of other political or economic
interests; and c) providing for recourse to action if the transfer is made
anyway. If instead the ATT is a treaty that allows transfers to go forward regardless
of violations of its criteria, it will undermine the current space other
governments and civil society have for challenging such transfers. Instead of
ensuring responsible transfers it will allow for irresponsible transfers in accordance with an international treaty.
This would be worse than having no treaty at all.
Many UN
member states are well aware of the consequences of failing to negotiate a
robust ATT. As they head into the final week of negotiations, civil society
will remain tuned in, ready to support, analyze, advise, and criticize as
necessary. NGOs and many governments have called for transparency in the ATT
process, as the issues get to the heart of human security and civil society has
much experience and expertise to offer negotiating delegations. And whether
negotiations take place in front rooms or back rooms, the world continues to
watch.
