ATT Monitor, Vol. 13, No. 4
Editorial: One more time for the people in the back—transparency (still) matters!
27 August 2020
Allison Pytlak
In keeping with the general spirit of 2020, the Sixth Conference of States Parties (CSP6) to the Arms Trade Treaty (ATT) was a departure from the norm. Due to the pandemic, it took place in “written format”—which meant participants submitted written statements and draft decisions were only commented upon in writing. Its unusual format and decision-making process made for a challenging experience of multilateralism, which was reinforced by familiar, and troubling, dynamics around the ATT’s implementation and transparency.
Transparency
In the edition[i] of the Monitor published before CSP6, we highlighted several concerns relating to transparency at CSP6. This included the distribution of conference documents; how the breaking of silence on a draft decision would be handled; and about draft decision 13 on establishing the Diversion Information Exchange Forum. We explained that our concerns stem from an increased attempt to limit transparency within ATT meeting cycles and Treaty implementation. These concerns have been reinforced by other civil society[ii] organisations and noted by multiple states in the context of Treaty reporting.
Positively, formal written objections have been posted on the ATT Secretariat’s website[iii] as well as translated into other languages. The draft final conference report was disseminated to allow 24 hours for states parties to review its content, before being published and considered final.[iv] Some states parties made reference to aspects of the draft decisions in their national written statements to the conference, either by expressing concern or welcoming certain initiatives. Such public documentation of objections and concern are vital for transparency in a process like this and ensure credibility and support for what ultimately gets decided.
The process behind the scenes was seemingly less clear cut. Reportedly, at least one state party objected to a draft decision that was ultimately maintained and may have received pushback on its concerns, while others reportedly received mixed signals about how their concerns were being responded to and addressed, vis-à-vis the agreed procedure.
Of course, it’s challenging to report on the process to address objections because there was no open format in which states parties could give voice to those concerns, or to hear and react to what others, including civil society, have to say. While behind-the-scenes consultation is a way that impasses are bridged in diplomacy, there is almost always a space for public discussion and interaction as a component of getting to agreement. The chosen format for CSP6 eliminated that option, which meant that bilateral and backchannel interactions became the sole way to manage disputes.
Draft decisions
Ultimately, eleven of the seventeen draft decisions were adopted. More than half of those are administrative and procedural in nature (i.e. agreeing dates, venue, budget, and leadership roles for CSP7; accepting a report on the sponsorship programme; and continuing the contract of the Head of the ATT Secretariat).
Two of the adopted decisions are substantive: one that affirms the mandate for the Working Group on Transparency and Reporting (WGTR) over the next year, and one that establishes a Diversion Information Exchange Forum.
Four of the draft decisions that were not adopted are also substantive. This includes the draft workplans for the Working Group on Effective Treaty Implementation (WGETI) sub-working groups and the CSP6 president’s working paper. The other two are about financial rules and proposed repercussions for non-payment of contributions.
Elsewhere in this edition we provide more detail about the written objections from states parties to some of these decisions, as based on what is publicly available online. Two states parties, France and the United Kingdom[v], objected jointly to the adoption of the WGETI workplans because they understand that a silence procedure can only be applied to procedural matters, and not substantive ones “requiring discussion and consultation” which, in their view, the work plans are and for which, they argue, more discussion is needed.
Apparently that logic of substance versus procedure was not extended to the establishment of the Diversion Information Exchange Forum or adopting a task list of “further work” for the WGTR. In fact, both countries welcomed the establishment of that new body in their national statements, along with several other states, mainly exporters. The Forum has come under strong civil society criticism and a few states also expressed concern about it either in national statements, as Austria did, or directly to the CSP6 president, Ambassador Villegas. “Both procedurally and substantively, Draft Decision 13, if agreed to, undermines the ATT’s purpose of transparency and its historic inclusion of civil society,” writes Control Arms in one of its statements.[vi] In its national statement, Austria also drew attention to the risk that the independence of civil society could be compromised by how the Forum would periodically invite non-governmental experts to participate.[vii]
Of course, without being allowed to view any of the documentation related to this new Forum, the discussion that gave rise to it, or how the decision to establish it was taken, it is nearly impossible for civil society to comment either on the Forum itself, much less how we might be instrumentalised by it.
Familiar dynamics
The process through which the Forum on diversion was established mirrors some of the dynamics seen at CSP5 around financial rules and proposed repercussions for non-payment of contributions. Both point to an emerging narrative within the ATT context about which states “count” and are thus listened to, and what “matters”. Major arms exporting countries speak out against or draw attention to the inability of smaller or developing countries to pay their dues, describing it as a lack of compliance, while other implementation and compliance concerns about their own behaviour—including arms transfers that violate the Treaty—remain unaddressed.
This point is not missed by other states. “We, the States Parties, must demonstrate to those States that are not yet [party], that there are a series of substantive benefits that they would obtain by participating in this forum, beyond the administrative discussions that may require our attention, but that do not constitute in any way the raison d'être of the Treaty and, much less, an obstacle to the inclusive participation of States and the universalization efforts with which we have committed ourselves,” stated Costa Rica.[viii]
Yet once again, this CSP did not include any “discussion” of actual arms transfers. International organisations and civil society groups were almost the only participants expressing concerns about this.
“With protracted armed conflicts and high levels of armed violence in many parts of Africa, the Middle East, Latin America and Asia, I am concerned that serious violations of IHL [international humanitarian law] and human rights law continue to be fueled by a steady supply of conventional arms and ammunition,” wrote Peter Maurer, president of the International Committee of the Red Cross, in his statement to CSP6.[ix] “In this respect, I remain gravely concerned by the apparent disparity between the Treaty’s obligation to ensure respect for IHL in arms transfer decisions and the arms transfer practices of too many States. This calls into question the Treaty’s credibility and effectiveness.”
Only one ATT state party made explicit in its CSP6 statement concern about “real-life” problems. The Netherlands[x] spoke of diverted arms shipments in violation of UN arms embargoes, such as in Yemen and Libya, and took note of and expressed support for the report by the UN Group of Eminent International and Regional Experts on Yemen of September 2019 which “directly questioned the legality of the authorization of arms transfers in view of the Arms Trade Treaty.” While explaining that it has implemented a strict national approach to arms exports to countries involved in the Yemen conflict, the Netherlands also noted, “It is striking that this has not been a more prominent point of discussion within the ATT” and expressed hope “that collectively we can do more justice to such matters in the future.” Palestine[xi], Mexico[xii], Costa Rica[xiii], and Libya[xiv] as a signatory state, made either less explicit references to context of concern, or to improve compliance and implementation of article 7.
The Yemen conflict is not the only violent context to be concerned with, but it is a context where the extent of armed violence and the culpability of arms suppliers is so very clear. It is also a crisis that has been highlighted by civil society and international actors (including a former Yemeni foreign minister) at every CSP that has ever been convened, in addition to extensive media, national advocacy, and legal work. While it may sound surprising that only one state party referenced Yemen plainly in its statement to CSP6, this is actually the only state party to have done so—ever.[xv]
“Up until today, most of the cases that have been discussed in more detail took place in the margins of the ATT [conferences], at side events about conflict in Yemen, and about arms supplies to warring parties,” noted Frank Slijper of PAX, at a virtual side event organised by Control Arms. “I can’t believe that states thought the ATT would not be dealing with these questions and discussions. Why are they so afraid?”
Where to from here?
The ongoing spread and evolution of the COVID-19 pandemic makes all future planning challenging, and a multilateral forum like the ATT is no exception.
The WGETI in particular will need to identify a new course of action, as the multi-year workplans that were meant to give long-term guidance to its three sub-groups were not adopted. It would be beneficial to convene open, informal, virtual consultations to understand some of the concerns that states parties would have raised in this connection and be in a position to take those on board in a formal setting.
Clearly, there is a need to identify alternative ways of convening that will enable discussion and exchange while guaranteeing access for all stakeholders. Several states parties expressed in their national statements that while they appreciate efforts made to convene CSP6, its modalities and format are due to exceptional circumstances and they have concerns about access and transparency, in particular for civil society. These concerns led to the inclusion in the final report of a line that notes that the format for the CSP6 is not intended to set a precedent for how future CSPs or other ATT meetings are convened. This is positive as it will ensure states parties learn from this experience and explore other avenues to hold the future meetings. It cannot be overlooked that there will likely be resourcing constraints in the future as well, which may impact the scale of meetings and how extensively all stakeholders can participate.
While many will want to see how the Diversion Information Exchange Forum takes shape, its secretive mandate and the way in which it was established makes that unlikely (which is intentional).
The president-designate for CSP7 is Ambassador Gberie of Sierra Leone. His video statement[xvi] does not identify a possible thematic focus for the next meeting cycle, but does describe strengthening various working groups and establishing bodies and committees to accomplish the object and purpose of the ATT. The Ambassador also identifies several specific challenges that require collaboration such as universalisation, capacity-building, international cooperation and assistance, and gender equality.
International meetings are an important dimension of maintaining and strengthening global instruments like the ATT, they are not a substitute for strong national implementation and Treaty compliance. As WILPF and others have expressed on multiple platforms, the multiple crises caused by COVID-19 are linked to how security is defined, and what is prioritised as a result of that definition.
“We must remember that security is inextricably linked to public welfare and socio-political and economic stability,” observed Nonviolence International Southeast Asia in its CSP6 statement.[xvii] For example, as the ICRC outlined, there are direct connections between the international arms trade and health care. “In April, hospitals supported by the ICRC in South Sudan were already at maximum capacity due to the high number of patients with gunshots wounds. After many years of armed conflict, half of the medical facilities in Syria and Yemen are not functioning, leaving their healthcare systems too weak to effectively respond to the pandemic. Access to life-saving healthcare is reduced or prevented by ongoing armed violence and even direct attacks against health-care, such as those that occurred a few weeks ago in Afghanistan.”
The next ATT meeting, whether virtual, hybrid, or physical, may not be held for awhile. But each day presents a new opportunity for states to work with other stakeholders to implement changes that will stop human suffering and build trust through transparency. “The ATT should always seek to be better in what it does,” observed Ambassador Gberie. We agree.
[i] Allison Pytlak, “Transparency (still) matters,” ATT Monitor, Vol. 13, No. 3, 14 August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/monitor/ATT-Monitor13.3.pdf.
[ii] See, for example, the General Statement from Saferworld to the CSP6, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/Saferworld.pdf.
[iii] See https://thearmstradetreaty.org/csp-6-decisions.
[iv] Final Report of the Sixth Conference of States Parties to the Arms Trade Treaty, 21 August 2020, ATT/CSP6/2020/SEC/635/Conf.FinRep.Rev1.
[v] Objection from France on behalf of France and the United Kingdom, 17 August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/documents/objection-france-uk.pdf.
[vi] Statement of Control Arms to CSP6 on draft decision 13, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/CA-2.pdf.
[vii] Statement of Austria to CSP6, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/Austria.pdf.
[viii] Statement of Costa Rica to CSP6, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/CostaRica.pdf.
[ix] Statement of Peter Maurer, President of the International Committee of the Red Cross, to CSP6, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/CostaRica.pdf.
[x] Statement of the Netherlands to CSP6, 14 August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/Netherlands.pdf.
[xi] General statement of the State of Palestine to CSP6, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/Palestine.pdf.
[xii] Statement of Mexico to CSP6, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/Mexico.pdf.
[xiii] Statement of Costa Rica to CSP6, August 2020.
[xiv] Statement of Libya to CSP6, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/Libya.pdf.
[xv] At CSP2, Zambia pointed out that many of the governments aiding other states with ATT implementation efforts are also transferring weapons that result in armed conflict, violence, death and destruction. At CSP3, Mexico delivered a statement on behalf of 12 countries to request that all ATT states parties and others abstain from transferring arms to Venezuela. Mexico welcomed the work done by civil society to stigmatize illegitimate arms transfers, while Chile said that it shared the concerns of civil society regarding transfers that violated the ATT. Costa Rica and Palestine made veiled references to problematic transfers to and of Venezuela and Israel at CSP4. There were no government statements of this nature at CSP5.
[xvi] Arms Trade Treaty (ATT): Statement by the President of the Seventh Conference of States Parties, 21 August 2020, https://www.youtube.com/watch?v=1u-xLQgdG2w&feature=youtu.be.
[xvii] Statement of Nonviolence International Southeast Asia, August 2020, https://reachingcriticalwill.org/images/documents/Disarmament-fora/att/csp6/statements/NISEA.pdf.
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