Since Friday, when the President released his second draft of the arms trade treaty (ATT), people have asked, “Whose treaty is this?” Is this a treaty that will protect human beings from armed conflict and armed violence, or is this a treaty that will protect the profits of arms manufacturers and exporters? Will it promote the interests of cooperative human security or militaristic state security? The release of the third draft text on Wednesday does not settle these questions.
It is not the text that those states demanding a strong treaty would have negotiated among themselves. That treaty text would have had a much more comprehensive scope for items and activities; binding prohibitions against the transfer of arms for a wider array of human rights and international law violations; mandatory public reporting and transparency mechanism; and more. This would have been the robust and comprehensive treaty that one can envision based on the interventions and positions of the majority of countries participating in the ATT process over the last six years.
Of
course, in any UN-based process, particularly one based on consensus, due
attention must be given to the concerns of all member states. This includes the
most powerful of states that have expressed concern that the ATT will be used
to prevent them from either acquiring or selling weapons. Concerns, both of
good-faith and not, should and could have been addressed while still ensuring
that the final treaty text remained committed to putting human lives and
well-being above the commercial and political interests of states.
A treaty
that puts human lives first and foremost is what has been demanded from the
majority of states, international and regional organizations, civil society
groups, and survivors of armed conflict and armed violence from around the
world. Such a treaty would look very different from the draft we currently have
before us. Unfortunately, the inability to adjust the procedural rule of
adoption by consensus prevented from the achievement of a treaty that matched the
original vision. Instead, the draft under consideration now arguably protects
the interests of the powerful above all. If the treaty is not implemented in
the best faith possible (and perhaps supplemented with strong interpretative
statements and further improved over time through robust engagement in the
Conference of States Parties), it could risk providing legal or political cover
for the small number of major exporters to exploit profits by continuing to
transfer arms as they see fit, rather than as the broader international community—and
human security—demands.
Last
week, 116 countries warned that a weak ATT could serve to
legitimize the irresponsible and illegal arms trade, and called for this outcome
to be avoided. Do these states believe that this treaty text is strong enough
to avoid this? They collectively said it had to have clear legal language. Is this
language clear enough? Does it reflect international legal norms, standards,
and principles? Are its provisions on ammunition, diversion, assessment
criteria, and implementation robust enough to meet their expectations? Facing
us all now at the last moments of negotiations are these questions of
significant weight that should be considered as if we were the first day.
The
ATT process has unquestionably demonstrated that the majority of
countries do in fact support a strong treaty that would potentially make a
difference in the lives of those suffering from armed violence and armed conflict.
The process itself has been significant in setting new and evolving norms
against transferring arms when there is a risk of violation of human rights and
international humanitarian law, including acts of gender-based violence. It’s clear that most states support
their export decisions to include the widest possible array of conventional
weapons, ammunition, munitions, parts, components, as well as gifts, loans, and
leases. A large number of states have indicated they want to make reports
public to enhance transparency of the international arms trade. These norms must guide interpretation and
implementation of any Arms Trade Treaty.
The final question for states today
is, does this current draft text help, or hinder, the further development of
these norms? Is this a useful tool for those seeking to legitimize the status
quo or for those seeking substantial reductions of the horrors of armed
violence and conflict?
A few remarks on
the third draft text
The
current draft leaves ammunition,
munitions, parts, and components uncovered by many of the treaty’s
provisions, such as those on brokering, transit, transshipment, and reporting.
The definitions of these items are still much too limiting—for example, hand
grenades would not be covered.
The definitions of the conventional arms in
the treaty’s scope are also too narrow. The floor is the definitions provided
in the UN Register of Conventional Arms, at the time that the ATT enters into
force. This means definitions can be frozen to weapon systems that made sense
more than two decades ago. The article dedicated to the Conference on States
Parties provides for states parties to review “developments in the field of
conventional arms” but does not explicitly allow for updates to the scope or
definitions.
The scope
of activities remains narrowly
limited only to commercial transactions. This misses out on weapons transferred
as gifts, loans, or leases.
The
prohibition against transferring weapons when there is knowledge that the
weapons would be used in the commission of genocide,
crimes against humanity, and war crimes is still much too weak. The text
only refers to “grave breaches of the Geneva Conventions of 1949” and to war
crimes “as defined by international agreements to which it is a Party.” This
excludes the Protocols of the Geneva Conventions and customary international
law.
A
reference to “attacks directed against civilian objects or civilians protected
as such” is likely a compromise between those not wanting to reference Protocol
I of the Geneva Conventions or customary international law and those demanding
that the prohibition must include attacks against civilians. The new reference
is welcome, though it would have been better to have customary international
law apply.
There
is no prohibition against transferring weapons to states that are clearly violating
human rights, although international
human rights law (IHRL), along with international
humanitarian law (IHL), is still contained within the export assessment
process. If a state determines there is an “overriding risk” that the weapons
will be used to commit violations of IHL, IHRL, terrorism agreements, or
transnational organized crime agreements, it shall not authorize the export.
However,
the text still pits the assessment of IHL and human rights violations against
assessment of the weapons’ possible “contribution” to peace and security, with
no recognition that respect for IHL and human rights themselves contribute to peace and security.
And
after a state has authorized an export, if it receives new information, it is
only “encouraged to” reassess the authorization. The previous draft made the
reassessment mandatory in such a situation.
Furthermore,
it is now mandatory for exporting states to “consider whether there are
measures that could be undertaken to mitigate risks” of IHL and IHRL
violations. Considering such measures was previously optional. Obligating
states to consider such measures is likely an effort to ease the concerns of
China, Russia, and Syria, among others. Earlier this week they expressed
concern that the export assessment criteria related to IHL and IHRL could be
subject to “political manipulation” and demanded their removal or amendment. Making
it mandatory to consider something is not the same as making it mandatory to do
something, so applying any such measures still remains optional. However,
violations of IHL and IHRL should automatically warrant denial of the transfer
request, full stop, and the treaty text should reflect that.
Fortunately,
the criterion on preventing gender-based
violence is now binding. It is part of the mandatory export assessment
process outlined in article 7 and is subject to possible transfer denials.
While the provision is not perfect, it is much stronger than in previous
drafts. (See the article “Preventing armed gender-based violence” on page 9 for
details.)
However,
the retention of the phrase “overriding
risk” in article 7 ultimately gives exporting states
a blank cheque to authorize any export they wish, despite the provisions of
this treaty. It arguably implies that even if the exporting state is 90%
certain the weapons will be used to slaughter civilians, it could decide the
weapons contribute to promoting some other, undefined interest, and thus
approve the transfer. This is perhaps the most egregious loophole remaining in
the treaty. It will require strong, good-faith implementation to ensure this
term is not used to “override” human rights, IHL, and other elements of the
export assessment criteria.
Meanwhile,
the lack of transparency provided
for in the text could undermine the treaty’s content. States are not required
to release their reports publicly, meaning civil society and international and
regional organizations will not have access to the information that is crucial
for determining trends, challenges, or achievements in treaty implementation or
in the arms trade in general. Furthermore, states are not required to report on
activities other than import and export; on items other than those covered in
article 2(1); or on “commercially sensitive or national security information”.
The
refusal of some states to allow mandatory public reporting in the treaty text seems
rather silly. Civil society and others will continue to glean data and
information from public resources, and technology is moving the world towards a
situation where it will be more difficult for states to keep transfers secret.
Including public reporting in the ATT would have gone a long way to helping
develop a culture and permanent architecture for transparency and it is deeply
unfortunate that this opportunity has been lost.
For
more analysis of the changes in the third draft text, see Katherine Prizeman’s
“Substantive Review” on page 4 of the ATT Monitor.
