Tuesday, March 26, 2013

Honing in on the indispensables in the second draft text

by Katherine Prizeman, Global Action to Prevent War
With the release of the new President’s Non-Paper last Friday, delegations have been carefully examining the text in order to identify what has been improved, what has remained the same, and what new ambiguities have been introduced. Levels of satisfaction with the new draft text were varied, from the Arab Group’s statement that “none” of its views were represented to other delegations that were more positive on the draft.

Some of the positive points raised by delegations included the new prominence of ammunition/munitions and parts and components in articles 3 and 4, respectively, as well as the new article 14 on diversion and the additional provision for the Conference of States Parties to review implementation and interpretation of the treaty.

Other more tempered support for the text was expressed. A statement from 103 states, delivered by the delegation of Ghana, pointed out some improvements, such as those mentioned above, but also was clear that provisions related to scope, export assessment, and implementation have not “met expectations” and “some seem to be a step backwards from earlier language.” These countries urged stronger language on all of these sections in order to “produce a strong and effective Treaty which lives up to the expectations expressed by the overwhelming majority of States.”

Those in the “minority” also called for changes, though usually in the opposite direction. The Russian delegation noted that “the text has become clearer and more accessible” but also highlighted “clear omissions” from the text such as the lack of references to non-state entities. Likewise, the Indian delegation welcomed certain “improvements” in the text such as the additional references to terrorist acts in the preamble and the object and purpose, but continued to oppose coverage of parts and components and ammunition/munitions in the scope. The Chinese delegation said that it would be possible to reach consensus based on this latest text, but remained concerned that articles 7(4) and 7(8) could be abused and “jeopardize Chinese interests”. Moreover, the US delegation called the text “clearer, stronger, and more implementable,” but stated that it was too late to re-open negotiations in an attempt to expand the Treaty into “entirely new topics”. The delegation of Pakistan noted that it may be a “strong” treaty, but it is not a balanced one from the perspective of importers. This issue of imbalance was reiterated by the Cuban, Egyptian, and Venezuelan delegations.

It is clear that serious work remains if a consensus text is to be reached and adopted on Thursday. However, as has often been repeated, the goal is not just a consensus document, but a treaty that effectively prevents human suffering associated with the arms trade and enhances peace and security.

Depending, of course, on the individual priorities of delegations, the prioritization of text “fixes” varies. There are many “fixes” to choose from—ammunition and parts and components are not fully covered by the scope of the draft treaty; activities such as gifts and loans are not explicitly covered; the defense cooperation clause allowing for “contracting out” remains unchanged; “overriding risk” in export assessment has not been addressed and continues to allow for a possible undermining of existing international humanitarian law (IHL) and international human rights law; and public reporting is still not mandated. While there are other changes that would also be important for the next draft set to be released on Wednesday morning, these aforementioned items are crucial items to the ability of the ATT to set meaningful standards for the arms trade that will do more than “regulate” transfers on paper and “legitimize” existing practice, but move the industry towards higher levels of transparency, accountability, and responsibility.

In terms of scope, it is clear that ammunition, parts, and components are still not adequately covered. The Ambassador New Zealand called the new scope formulation “unwarrantably narrow” and reiterated once again that non-commercial transactions are still not covered. The delegation of Nigeria noted that it would not “budge” on ammunition. Although it is an improvement that these items have been placed more prominently in individual articles (3 and 4, respectively) as noted by the delegation of Japan, such items are still subject only to the prohibitions and the “top tier” of export assessment criteria and not import, brokering, transit and trans-shipment, “second tier” criteria, or reporting obligations.

The majority of delegations speaking today supported the view that ammunition/munitions and parts and components should acquire full coverage under the treaty. While the vast majority of states have already called for more comprehensive coverage of these items, the text has not incorporated this majority opinion. Not only are these items outside of the full scope of the treaty, but the defitions provided for them in their respective articles are too limiting. For example, the Latin American and Caribbean Group of Friends, the EU, Germany, Kenya, New Zealand, Netherlands, and Sweden noted that items such as hand grenades and landmines remain outside the scope.

The prohibitions and export assessment criteria have seen some improvement, notably the replacement of a knowledge-based standard rather than one of mere intent in article 6(3). In addition, the transnational organized crime criterion has been moved from the “voluntary mitigation measures” section in 7(8) up to the primary export assessment section in 7(4)(d). Nevertheless, the most glaring loophole in this section remains—the term “overriding risk”. Various regional blocks reiterated concern over this provision on Monday. CARICOM, ECOWAS, and the Pacific Island states called for replacing “overriding” with “substantial,” while the EU proposed the language “clear risk”. Only the delegations of France, Iran, and the US have explicitly supported the retention of “overriding.”

Moreover, another significant improvement needed for this section was addressed by the delegation of Norway, on behalf of a diverse group of states. The Norwegian and Swiss delegations jointly proposed new, improved language for article 6(3) that would cover war crimes more effectively and comprehensively so that this provision references customary international law rather than only those explicit treaties to which a state is a party.

Lastly, the language in 7(8) regarding voluntary mitigation measures must also be strengthened if these criteria are not be treated in the primary export assessment section. As noted by the representative of Germany, the language in this provision currently lacks “operational clarity” and is still hampering effective application of the criteria found in this sub-article. Some of these items, including gender-based violence, must have binding obligations not voluntary mitigation measures.

With regards to implementation, the issues of public reporting as well as the defence cooperation clause remain unchanged. Many delegations have noted that the provision of public reporting is necessary for the future ATT to fulfill its goal and objective to improve transparency of the arms trade. Despite the fact that the Arab Group called for voluntary reporting, 37 states have previously supported the inclusion of public reporting in a joint statement from 20 March and others have since expressed support for this change. The statement from 103 states delivered by Ghana on Monday noted that the Treaty “should enhance transparency and strengthen accountability by making key information publicly available.” As has been noted since the genesis of the ATT process, and quoted in the 2006 General Assembly resolution (61/89), one of the motivations behind the ATT has been in the context of initiatives that seek “to enhance cooperation, improve information exchange and transparency and implement confidence-building measures in the field of responsible arms trade.”

Many delegations also continue to reiterate that current article 5(2) is unacceptable and will undermine the treaty. Today, those voices included CARICOM, ECOWAS, the Latin American and Caribbean Group of Friends, Ghana on behalf of 103 countries, Germany, Japan, Netherlands, New Zealand, and the US.

As has been repeated several times in this ATT Monitor by various civil society colleagues, the elements referenced above are indispensable to an ATT that is robust, comprehensive, and, effective in practice. They are necessary if the goal is for arms transfer policy to be made more responsible in order to limit and prevent the humanitarian consequences currently surrounding this unregulated industry. The current draft text does not adequately address these fundamental “loopholes” that will be crucial to determining if the treaty will be a “success”—success defined by its meaningful contribution to international peace and security.