by Ray Acheson, Reaching Critical Will of WILPF
During Wednesday’s negotiations on various aspects of the draft arms trade treaty (ATT), delegations discussed two issues that are particularly critical for the effectiveness of the treaty. One is the concept of “overriding” risk in the context of national risk assessments for arms transfers. The other is article 5(2) of the 26 July draft text, which seems to allow states to “contract out” of the ATT by entering into other agreements. The resolution of these issues will largely determine if the treaty is robust and meaningful, or if it is not worth the paper upon which it is written.
“Overriding risk”
The US delegation asserted that “peace and security” considerations could override other criteria in the ATT. It argued that sometimes arms transfers contribute to peace and security. Therefore, the risk of other violations has to be sufficiently high so as to “override” any “benefits” from making the transfer. This position significantly undermines the treaty’s ability to make a meaningful impact on reducing human suffering. It also fundamentally misunderstands the notion of “peace and security”.
Insisting on the phrase “overriding” risk is to insist that one’s other priorities—political, economic, or strategic—take precedence over human lives. The vast majority of delegations that have addressed this issue prefer the term “substantial” risk. As the delegation of Liechtenstein explained, the risk assessment process is about probability. The term “substantial” indicates that if there is a clear risk that the weapons will be used to commit crimes, the transfer shall not be authorized. The term “overriding,” Liechtenstein argued, suggests that even if there is a 90% likelihood that the weapons will be used to commit such crimes, other, unknown interests could be deemed more important by the exporting state. Basically, it allows exporting states to continue doing whatever they want regardless of the human consequences, rendering meaningless many of the core provisions of the treaty.
Furthermore, the US argument suggests that “peace and security” is determined exclusively by “state” interests. But as the Swedish Section of the Women’s International League for Peace and Freedom noted today, “Implying that ‘peace and security’ interests can trump respect for human rights means you have the wrong idea about peace and security.” Indeed, human rights and international law are fundamental to peace and security. They must not be overridden by other, unspecified interests.
“Contracting out”
The second key issue discussed today was article 5(2), which says that the ATT shall not prejudice obligations from other instruments and that it cannot be cited as grounds for voiding contractual obligations under defence cooperation agreements concluded with other states parties.
Since this article first appeared in the draft text last July, the vast majority of states have called for its deletion. On Wednesday alone, CARICOM, the EU, Australia, Iceland, Ireland, Italy, Japan, Liberia, Liechtenstein, Mexico, Netherlands, Norway, Sweden, Switzerland, Turkey, and the UK all called for this article’s revision or deletion. Only a few states support its inclusion. Those that want the clause feel it protects them against biased or manipulative implementation of the ATT. But as the delegation of Liechtenstein eloquently argued, this article is like writing a 25-article treaty and then adding one more article that says, “No, we were just kidding!”
Indeed, as currently worded, article 5(2) makes the ATT subordinate to other international instruments and permits states to contact out of the ATT by signing other agreements. A few delegations argued that this is not the case, arguing that article 24 of the text says that states can only enter into other conventional weapons agreements that are compatible with their ATT obligations. However, if this is indeed the case, then there is no reason for article 5(2) to exist. As it stands now, article 5(2) directly contradicts and undermines article 24. Article 5(2) should thus be deleted, a proposal that most countries speaking on this subject have supported.
On Tuesday, Venezuela’s delegation said that a litmus test must be applied against each article of the treaty. From its perspective, this test should determine whether each article can be applied equally to all states. Such a litmus test is also to ensure that every article of the treaty advances human security and prevents and reduces human suffering. Any article that undermines the core objective of the treaty—to protect human beings from the consequences of the irresponsible and illicit arms trade—must be rejected.
