20 July 2012, Vol. 5, No. 13

Editorial: Rule of law or rule of “interests”?
Ray Acheson | Reaching Critical Will of WILPF

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On Thursday morning, a battle broke out during negotiations of the arms trade treaty (ATT) over whether or not the criteria for assessing the risk of arms transfers should be buried in the national implementation section of the treaty, and, whether or not identification of a substantial risk should result in an automatic denial of the transfer. These debates are central to determining whether the ATT will be a document that strengthens or undermines the rule of law. If it is the latter, the whole point of developing an ATT will be lost.

The committee working on the criteria and parameters went through two draft texts on Thursday. The first, introduced at 10:00, reduced the parameters section to two paragraphs stipulating that states parties “shall make risk assessments” to ensure the export “is consistent with the provisions of the Treaty, based on the criteria”; and that the state party shall not authorize the export if it would “violate the provisions of the treaty” or the state party’s “relevant obligations under international law”. The list of criteria that are to be taken into account in risk assessments was moved to the national implementation section of the treaty, along with vague language on mitigation measures.

There were several issues of concern with this draft. One was that the parameters section only stipulated that states shall make risk assessments to ensure a transfer would be consistent with the treaty—it did not suggest what the appropriate action is if a risk is identified.

Many countries noted the failure of the draft to make a connection between the risk assessment and criteria on the one hand and the decisions states should make on the other. Delegations including those of Austria, Australia, Costa Rica, Denmark, European Union, Germany, International Committee of the Red Cross (ICRC), Ireland, Japan, Mexico, Portugal, and Switzerland said the treaty must stipulate that state parties “shall not authorize” the transfer if substantial risk based on criteria is identified through the mandatory risk assessment process. The ICRC pointed out that if transfers are allowed to take place despite knowledge of substantial risk of violations of IHL, this would undermine states’ existing obligations under the Geneva Conventions to “ensure respect” for IHL.

Despite this, the US delegation emphasized that it will not accept a “shall not” clause, nor even a “presumption” against transfers upon identification of risk. The US representative said her country operates under a policy of exercising “particular restraint” in the case of a risky transfer and would not accept any stricter language in the ATT.

A second issue of concern was that the draft only required state parties to deny an export if it would “violate the provisions of the treaty” or “relevant obligations under international law”. Several delegations argued this was too vague and called for clarification as to which “provisions” and “relevant obligations” are being referred to in this context. Costa Rica, France, and Germany said this paragraph would have to include explicit references to items such as IHL, IHRL, and international crimes. But then the question remained, why not link the requirement of transfer denial to the list of criteria?

A fourth issue concerned the implications of moving the criteria to the section on implementation. This move was originally proposed by the P5 on 12 July and was supported by Brazil, India, and Syria. However, with the introduction of this change on Thursday, delegation after delegation argued this would detract from the ability of the ATT to set international legally-binding standards for arms transfers, which is the overall objective of the treaty. If criteria are a matter of simply implementation, they are implicitly a matter for national discretion rather than international scrutiny. The implementation section of the treaty deals with how the treaty will be implemented, not what it will implement. Therefore, the criteria must be a separate section.

A great deal of states declared this draft as undermining the very purpose of an ATT. In a joint statement, Estonia, CARICOM, Colombia, Denmark, Finland, Fiji, Ghana, Ireland, Liberia, Mexico, New Zealand, Niger, Nigeria, Norway, Palau, Papua New Guinea, Samoa, Switzerland, and Vanuatu argued that the criteria section “is an essential part of the over-arching, global framework for the treaty,” emphasizing, “It is part of its universal framing in much the same way as its principles, or objectives, are.” Several other states, including Chile, Germany, Japan, Malawi, and Peru, agreed with this assessment.

The outcry against changes to the structure and content of the text on criteria led the Chair to release a second draft text at 17:00. This text put the criteria list back in the parameters section. It also finally added gender-based violence to the criteria. As Iceland’s delegation noted in the morning, at least 15 member states had demanded its inclusion, yet it had not appeared in the text. The new text now includes use “to perpetrate or facilitate acts of gender-based violence, and violence against children” in the risk assessment criteria. The new text also specifies that mitigation measures must be taken prior to a final decision on the authorization of an export.

However, problems remain. The draft now does make a link between the risk assessment criteria and decisions on transfers, but it merely says “Where substantial risks exist, there shall be a presumption against authorization.” This is not strong enough. Even with a “presumption against authorization,” a state can override the presumption if decides that other political or economic interests are more important. This is a huge loophole in the treaty, an “escape clause” that will allow transfers to occur regardless of the consequences if a state decides other interests trump human security concerns.

The new draft also retains the language stipulating that state parties shall not authorize an export if it would “violate the provisions of the treaty” or the state party’s “relevant obligations under international law”. Despite calls for these “provisions” and “relevant obligations” to be explicitly described, both elements remain vague and unspecified. And, despite many calls for the parameters to refer to transfers rather than exports, in order to capture the broad range of activities covered by the treaty, the text still only discusses exports.

As the ICRC noted, a treaty based on these parameters would undermine existing international law. The text does not prohibit states from transferring weapons even where there is a significant risk of serious violations of international human rights law or international humanitarian law, or where weapons can be used to facilitate commission of international crimes. Thus the text gives states a list of suggested items to consider when deciding whether or not to export weapons. It does not establish the highest common international standards for governments to apply to their international arms transfer decisions, but rather encourages them to deny an export when it would have negative consequences while still allowing other interests to take precedence.

Venezuela’s delegation argued on Thursday afternoon that we do not live in a world with a just system of collective security, which is why an ATT should not inhibit the ability of states to acquire arms. On the contrary, this is exactly why we need a strong ATT. The lack of justice and security is what motivated the development of an ATT in the first place. Unregulated arms transfers have done nothing but undermine justice and security around the world. And in fact, the development of an ATT, with robust criteria and scope, strong implementation mechanisms, and effective transparency measures, would actually aid in the development of collective security. This is the reason we have spent six years trying to develop this treaty. We must not let those governments that put their ability to buy and sell weapons above the protection of civilians to undermine the achievement of our objective.

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