Wednesday, March 20, 2013

Compelling states to transfer arms?

by Ray Acheson, Reaching Critical Will of WILPF

Over the past two days, delegations have discussed many proposals aimed at either strengthening or weakening the draft arms trade treaty (ATT). Some of the proposals aimed at weakening the text have focused on the so-called “right” of states to import weapons. Exemplified by the intervention by Venezuela on Tuesday morning, a number of importing states continue to seek guarantees that exporting states must authorize arms transfers except in very extreme circumstances. A number of states subscribe to the notion that the ATT should facilitate the arms trade, ostensibly out of concern that an effective treaty could be used as a political weapon. However, provisions that effectively compel exporters to transfer arms are inconsistent with the core objective of the treaty: to prevent human suffering caused by irresponsible trade.

Venezuela’s proposal would require states only to assess whether the transfer could be diverted to unauthorized recipients. Exporters would take into account information provided by the importing state and establish risk mitigation measures. Transfers would only be prohibited if the weapons would be used to commit genocide, war crimes, crimes against humanity, crimes of aggression, or to extend foreign occupation. All transfers shall be authorized unless the exporting state concludes there is an overriding risk.

To illustrate its rationale, Venezuela described a hypothetical situation in which a state is engaged in armed conflict and may be “compelled” to violate international humanitarian law (IHL) or human rights. The delegation asked, in such a situation, should that state then be deprived of its right to self-defence by having arms transfer requests denied?

Liechtenstein responded directly to this question with the only defensible answer: Yes, if there is substantial risk that the weapons will be used to violate IHL or human rights, the exporting state must not authorize the transfer. As Liechtenstein argued, this is the entire point of the treaty. The delegation also noted that the right to self-defence does not include the right to attack civilians during the conduct of hostilities.

Venezuela is absolutely correct, however, in demanding that the treaty be applied equally to every state. And as Liechtenstein pointed out, the proposals to strengthen the treaty’s prohibitions, criteria, and national assessment mechanisms are aimed at doing just that. These provisions will ensure that the treaty is applied consistently and that its provisions are as robust as possible so as to ensure effective implementation of the treaty’s object and purpose.

But consistency cannot translate into an unconditional right to receive imports, nor can it be used to compel any state to export weapons. Sovereign states will always retain the right to have the final word on their own arms exports. The purpose of the ATT is to ensure that these decisions are subject to common standards that minimize human suffering.