23 July 2012, Vol. 5, No. 14

Editorial: The risks of balancing acts
Ray Acheson | Reaching Critical Will of WILPF

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After closed negotiations Thursday night on the arms trade treaty (ATT)’s goals and objectives, Friday’s open meetings returned to the issue of criteria and parameters for arms transfers. The criteria and the related decision-making process through which arms transfers will be authorized or denied are arguably the most important aspects of the treaty. They, along with the scope, will determine whether the treaty makes a difference in reducing the consequences of the unregulated trade in weapons or whether it permits the status quo to continue, but with an international treaty providing cover for irresponsible transfers. This is why delegations participating in the debate either sought to ensure the strongest or the weakest possible standards in this section.

In the morning the committee worked off the version released Thursday evening, and in the afternoon the Chair released a slightly modified text based on the morning’s discussions. While the majority of delegations participating in the debate demanded strongly worded and comprehensive criteria for making risk assessments, some delegations suggested watering down language or deleting specific criteria, expressing concerns with the “subjectivity”. A few governments are skeptical of having a list the criteria at all. The Egyptian and Pakistani delegations have routinely questioned what information will be used as the basis for risk assessment and who will make the decisions. However, as the Spanish delegation emphasized, the treaty’s mandatory risk assessment process, based on a specific set of criteria, is not about subjectivity but about ensuring arms transfers are not authorized in circumstances of well-known violations of the criteria outlined in the draft text.

This is why the majority of delegations demanded strict language in the treaty that if a significant risk is detected through the mandatory risk assessment, ATT state parties “shall not authorize” the arms transfer. The wording in the revised draft text released Friday afternoon still merely said, “Where substantial risk exists, there shall be a presumption against authorization.” Most governments in favour of a strong treaty have consistently argued that this is not strong enough. The United States, however, has argued that either of these formulations is too strong. It will only accept a provision requiring state parties to “exercise particular restraint” if substantial risk is found, arguing that “national security concerns” (i.e. political or economic interests) must be able to take precedence over risks of violations of human rights, IHL, genocide, war crimes, crimes against humanity, acts of aggression, gender-based violence, violence against children, regional or international stability, organized crime, terrorism, diversion to illicit markets or end-users, or any other possible criteria.

In the latest draft text produced after the weekend negotiations, the language of the criteria section seems to have been modified to accommodate the US delegations’ concerns. According to a copy obtained by the author, the risk assessment section text says that state parties “may balance the risk against the security imperatives associated with authorizing the transfer.” It is not at all clear what such a balancing act would entail—the text does not spell out any standards for such an assessment nor circumstances in which one or other could or would take precedence, leaving a rather large loophole for subjective interpretation and application of the treaty.

Such an “escape clause,” if written into the treaty, will undermine the rule of law. It will undermine existing international humanitarian law, as pointed out by the International Committee of the Red Cross on Thursday. It will make the ATT little more than a piece of paper with a list of suggestions for governments to consider when making decisions about arms transfers. It will make a joke of the overwhelming need and desire to have strong international regulations for the arms trade.

While it is necessary to address governments’ concerns so that a wide range of states can accept the ATT, care should also be taken that the treaty text is not so watered down to be completely ineffective or worse, detrimental to existing international norms and standards. In considering such concerns, delegations should acknowledge that some countries are unlikely to ratify the treaty no matter how weak its provisions. The United States is one such country—as a case in point, it recently failed to finally ratify the Law of the Sea Treaty, despite support for ratification of the Treaty from the US Chamber of Commerce and the US Navy.

In opposition to the continuous attempts to weaken the foundations of the future ATT, 74 governments delivered a joint statement to the conference on Friday afternoon. Arguing that the ATT “will be judged by the strength” of its criteria and scope, the 74 countries said that the treaty needs to prevent authorization of arms transfers “where there is substantial risk that those weapons would be, inter alia: used for, or facilitate, serious violations of international law, including international humanitarian law and human rights law; having a destabilizing effect or exacerbating existing conflicts; or diverted to unauthorized end users.” They also emphasized the need for an ATT that includes small arms and light weapons and ammunition in its scope.

By delivering this statement before intensive closed negotiations were to begin over the weekend, these 74 governments clearly demonstrated their commitment to ensuring that the treaty does not result in a list of suggestions that will provide cover for future irresponsible arms transfers but that it achieves the original goal as set out in the UN General Assembly resolutions: “a legally-binding instrument on the highest possible common international standards for the transfer of conventional arms.”

Interestingly, the 7 original co-sponsors of the UNGA resolution that began the ATT process—Argentina, Australia, Costa Rica, Finland, Japan, Kenya, and the United Kingdom—were conspicuously missing from the list of 74 countries supporting this strong statement calling for a robust ATT. Sources indicated that at least some of these governments argued that it was “not the right time” for such a statement. However, the 74 countries that did join the call clearly recognized that the time was exactly ripe for such a clear and unambiguous stand against the treaty’s dilution. Intensive closed negotiations were scheduled to take place over the weekend, and negotiations this week are reportedly likely behind closed doors without the possibility for civil society to monitor the proceedings. Friday was the exact right time for countries that want a strong ATT to reveal where they stand in relation to these negotiations. The world now knows what countries are truly committed to achieving a meaningful and effective treaty, and which are not.

In the end, the ATT must be an effective mechanism for a) determining if an arms transfer is irresponsible based on a specific set of criteria; b) prohibiting transfers that would be irresponsible regardless of other political or economic interests; and c) providing for recourse to action if the transfer is made anyway. If instead the ATT is a treaty that allows transfers to go forward regardless of violations of its criteria, it will undermine the current space other governments and civil society have for challenging such transfers. Instead of ensuring responsible transfers it will allow for irresponsible transfers in accordance with an international treaty. This would be worse than having no treaty at all.

Many UN member states are well aware of the consequences of failing to negotiate a robust ATT. As they head into the final week of negotiations, civil society will remain tuned in, ready to support, analyze, advise, and criticize as necessary. NGOs and many governments have called for transparency in the ATT process, as the issues get to the heart of human security and civil society has much experience and expertise to offer negotiating delegations. And whether negotiations take place in front rooms or back rooms, the world continues to watch.

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