Thursday, July 26, 2012

Trade and transfers: getting to the goals

by Maj Rørdam Nielsen, Global Action to Prevent War

As everyone who has followed the Arms Trade Treaty (ATT) process will know, the devil is in the detail. Five small letters differentiate “trade” from “transfer”. The ATT negotiating conference started out with the Chair’s 3 July 2012 paper, which stated that the treaty should apply to “all international transfers of conventional arms,” including “the transfer of title or control over conventional arms.” The definition of covered activities has since been continuously narrowed. The President’s most recent compilation text stipulates in paragraph 2.B.1 that the covered activities are limited to export, import, brokering, and transit and transhipment.
The draft treaty aims “to establish the highest possible common standards” of trade in conventional arms and “to prevent, combat and eradicate the illicit trade in conventional arms and their diversion to illegal and unauthorized end use”—not least in order to avoid that the international arms trade “contributes to human suffering”. These core goals and objectives only make sense if the treaty contains adequate provisions to achieve the goals in practice and prevents circumvention. Therefore, various delegations, such as those of CARICOM, South Africa, Costa Rica, Mexico, and Kenya, have throughout the negotiation process called for the treaty to apply to “transfers” instead of “trade” and for the criteria risk assessments to be mandatorily applied  to all transfers, rather than just “exports”.

To have provisions that can achieve the treaty’s goals requires that all state parties that are in any way involved in an arms transfer have a right and obligation to stop the transfer if it would violate the criteria. This is essential as it is very likely that not all exporters will become parties to the treaty, or they might authorize an irresponsible transfer based on incomplete or inaccurate information. Importers, transit and transhipment states, states that house brokers—including transporting companies—are complicit in this process and they should not be exempt from responsibility. The more states that are responsible for preventing illegal and irresponsible arms transfers, the more difficult such transfers will be. Thus the term “export” should be replaced with “transfer” in articles 4 and 5 of the treaty--or regarding article 5, as Katherine Prizeman’s article in this edition of the ATT Monitor argues, the article better be deleted and the criteria in that section moved to article 4 so that they are captured in the risk assessment process. Throughout the draft text, the definitions of transfer activities are weak. Transport is currently not specifically covered in the treaty, even though transporting states are actively engaged and financially invested in arms transfers. Former UN arms trafficking investigator Kathi Lynn Austin, who spoke at a side event last week, has sharply criticized the current article on brokering in the draft treaty. She argued in a press release yesterday that brokering must be defined to include all relevant intermediaries, especially transporters. Further, it should require licensing and registration of arms brokers, she said. Likewise, the research organisations TransArms and the International Peace Information Service earlier this month published a report on arms transports in which they called for the ATT to include provisions requiring registration of arms transport providers within each state party’s territory and requiring authorization requests for all individual arms transports.

To ensure provisions in the ATT that prevent circumvention of the goals means that what would normally be considered “trade” in arms, typically between an exporter and an importer, must be broadened to all transfer activities. The ATT must ensure that it captures activities such as gifts, leases, or loans. Language to the effect of “the transfer of title or control over conventional arms” in the activities section would help close this gap in the treaty text. Getting to the goals of the ATT in order to prevent the tremendous human suffering caused by poorly regulated arms transfers requires closing these significant loopholes.