Thursday, March 28, 2013

A tale of two treaties

by Ray Acheson, Reaching Critical Will of WILPF
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.