Wednesday, March 20, 2013

Scope and criteria: Getting to the “operational” heart of the ATT

by Katherine Prizeman, Global Action to Prevent War
After a lengthy discussion on Preamble, Principles, and Goals and Objectives, delegations began debate on Scope, Prohibitions and Criteria. These sections of the Treaty are surely at the heart of any ATT’s effectiveness and will guide how, and under what circumstances, national assessments will be carried out in practice. Given the framework that has been set for the ATT—national risk assessments conducted for transfers of weapons covered under the Treaty’s scope according to an agreed set of criteria—construction of these sections is most vital to determining if the Treaty will actually impact international peace and security and address the many consequences of the illicit and unregulated trade in conventional arms. As has been noted previously in this ATT Monitor, there are certain elements of these sections that simply cannot be compromised if the ATT is to be considered a “success” by those that are working for a text that will positively impact arms transfer policy making it not just better regulated, but also more responsible. 

What are these indispensable elements of scope and criteria?

As succinctly and rightly noted by the delegation of New Zealand, the scope of items must be clear, comprehensive, and “the same for all”. In terms of specific items, as was noted by a group of 69 countries in a joint statement delivered by the delegation of Ghana, inclusion of ammunition is fundamental to the objective of an ATT if it is to address the consequences of illicit and irresponsible trade globally. Such consequences are mostly the result of diversion of small arms and light weapons (SALWs) and their ammunition and munitions. This has been an issue championed by many African, Latin American, and Caribbean countries. Both CARICOM and ECOWAS reiterated that explicit inclusion of ammunition in the treaty’s scope is essential. The delegation of Costa Rica, on behalf of a group of five Central American states, also reiterated the importance of ammunition and munitions to the scope in a joint statement.

These weapons and their ammunition and munitions inarguably fuel the majority of armed conflict and armed violence globally. As noted by Daniel Mack in ATT Monitor 6.1, anything less than all conventional arms in the scope will not address the basic objective of the ATT. Furthermore, allowing for a loophole such as procuring parts and components to be assembled post-transfer (in lieu of a direct transfer of a complete weapon system) essentially negates the obligation of criteria assessment. The exporter would then be under no obligation to report on this transfer given the exclusion of parts and components from the legally-defined scope of the Treaty.

The objective of the ATT, as repeatedly reiterated by nearly all the delegations and as stated in the original General Assembly resolution, is to set the highest possible common, international standards for the transfer of conventional arms. The objective is not to create high standards for just some of the conventional arms in international circulation, in particular leaving out those weapons and components that have been proven to have the most impact on societal instability across the globe. Moreover, the exclusion of activities such as loans and gifts is a glaring omission that could easily be taken advantage of in order to render the ATT’s obligations meaningless. Support for including gifts and loans as activities under the Treaty’s scope was expressed by the delegations of Algeria, Brazil, Finland, Holy See, Japan, Netherlands, New Zealand, Solomon Islands, and the UK. ­­­­­

In addition to scope, criteria for national risk assessment processes are crucial for determining how the ATT will function in practice. If a comprehensive scope of items is identified, then states must be likewise required to make comprehensive assessments. As states will retain the sovereign right to conduct assessments and make determinations for arms transfers, the criteria set forth in the text must be strong, clear, and legally-binding so that there is a straightforward obligation to deny an authorization should any of the criteria be proven to be at “substantial risk”. The delegation of Liechtenstein rightly noted that “overriding risk,” as it is currently drafted in the 26 July text, simply makes no sense, as a risk is either high or low. Several other delegations expressed preference for the term “substantial” or “clear” risk, including Chile, Colombia, Germany, Holy See, Japan, Liechtenstein, Switzerland, and UK.

In terms of specific criteria enumerated in article 4(2), many delegations emphasized the importance of strengthening diversion into a “hard criterion” rather than leaving it in the weakly and insufficiently drafted language in article 4(6). Combating diversion of weapons to the illicit market has always been a primary objective of an ATT insofar as the consequences of illicit trade often derive from diversion risks. The delegations of Argentina, Australia, Chile, Japan, and Netherlands also supported the movement of diversion risk to article 4(2). It could be said that even those delegations that have been skeptical of an ATT and concerned over its potential political manipulation would be hard-pressed to argue against the goal of preventing diversion of weapons from authorized users to the black market. Why, then, should diversion be treated as a sort of secondary criterion?

Another key criterion receiving attention was that of gender-based violence. While GBV is currently lumped in the poorly-worded article 4(6), 31 countries— Argentina, Belgium, the fifteen countries of CARICOM, Denmark, Estonia, Finland, Hungary, Iceland, Ireland, Latvia, Lithuania, Netherlands, Norway, Papua New Guinea, Portugal, Sweden, and UK—argued that gender-based violence must be included in article 4(2). Norway noted that it is unacceptable that gender-based violence and violence against children are in article 4(6), as there is no duty to refrain from authorization based on those criteria.

Meanwhile, Venezuela, on behalf of a group of states, suggested that prohibitions and criteria be merged into a single article. They suggested specific language for this new article (see the News in Brief). However, the inclusion of separate prohibitions is vital to underscoring that decisions to deny authorizations, if such authorizations are in clear violation of universally-accepted breaches of international law such as genocide, crimes against humanity or war crimes, are not to be left to national prerogative. These prohibitions must be explicitly enumerated and cannot be merged into a section that will be defined by national discretion. This could, in fact, weaken already-existing international law obligations.

Indeed, delegations such as Argentina, ECOWAS, France, Liechtenstein, New Zealand, Senegal, and Switzerland underscored that the reference “for the purpose of” in article 3(3) is insufficient. The Swiss and Australian delegates noted that it implies intent to commit the crime of genocide and should rather be a knowledge-based assessment. It was also noted by the delegation of the UK that references to international law must be clear and not serve to undermine existing international law obligations. Furthermore, the delegation of Norway rightly noted that the current text refers too narrowly to international law and the current criteria exclude customary international law.

As noted by the delegate from the USA, the Scope, Prohibitions, and Criteria are indeed the “operational” heart of the Treaty. The stakes are even higher for these sections given the important role that they will play in judging the strength of the final text. The complexity of the negotiations on these sections must not eclipse the fact that certain indispensable provisions must be maintained—inclusion of ammunition, munitions, parts, and components in the scope of items and gifts and loans in the scope of activities, risk of diversion as a primary criterion for assessment, and clear prohibitions based on international law obligations. Weakening of any of these provisions will make it difficult for the ATT to fulfill its purpose—to have any real impact on the security, social, economic, and humanitarian consequences of the illicit and unregulated trade in conventional arms.