by Ray Acheson, Reaching Critical Will of WILPF
On Thursday
afternoon, the president of the arms
trade treaty (ATT) conference released a new
draft text. After two days of nearly round-the-clock negotiations, however,
the new text is still full of potential loopholes. Several areas of the text
need to be amended before this treaty could be considered as a step toward
plugging holes in the poorly regulated arms trade.
Furthermore,
this article appears to be inconsistent with article 6.3 of the draft treaty,
as pointed out by the delegation of Zambia. 6.3 says that if, after an
authorization has been granted, a state party reassesses the situation on the
basis of new information and does find an “overriding risk” based on the
treaty’s criteria, it may suspend or revoke the authorization. Article 6.3 must
certainly be retained, but 5.2 must be deleted. As the Swiss delegation argued,
governments cannot normally “contract out” of international treaties.
Another
problem remains in article 4 and the national assessment mechanism for
determining whether or not to make transfers. Article 4.1 stipulates that when
a state party is considering whether or not to authorize an export, it shall
assess whether that export “would contribute to or undermine peace or
security”. There is indication in 4.5 that a risk of violations of IHL, IHRL,
or terrorism can “override” a potential “contribution” to peace and security;
however, a decision-maker could assess that the risk does not override such a “contribution”. This would undermine states’
existing obligation to ensure respect for IHL, among other things. There could
be criminal or civil law implications of knowingly authorizing an export while
there is a substantial possibility of violations of IHL and IHRL.
Article 4
also permits the possibility of establishing “risk mitigation measures” in
order to cultivate the circumstances in which an authorization could be made.
However, it does not specify that these measures must be undertaken before the transfer is authorized, which
is imperative to ensure that the measures are indeed actually undertaken and
that the risk is effectively mitigated.
Article 4
also continues to segregate criteria related to diversion, gender-based
violence, violence against children, transnational organized crime, corruption,
and development (article 4.6). Rather than including these in the risk
assessment process that can result in a transfer denial, they are in a separate
paragraph stipulating that when considering authorizing an export, states
parties “shall consider taking feasible measures” to avoid the weapons being
used to any of those ends. The text still does not indicate what measures this
might entail, nor does it make such measures mandatory. As argued in the editorial
in ATT
Monitor Vol. 5, No. 16, all of these criteria should be fully included
in a risk assessment process, the result of which is that if a substantial risk
is found, the transfer shall not be authorized.
Ammunition is
still not in the scope, despite the
insistence of the majority of delegations. However, it is at least in the
export section in article 6.4, which says that states parties shall establish
and maintain a national control system to regulate the export of ammunition. Most
importantly, when considering an export of ammunition, states would have to
apply the criteria for risk assessment in articles 3 and 4. However, the
elements that are included in the separate paragraph (4.6) are specifically
excluded, as is also the case for assessments related to export of parts and
components (6.5).
In addition,
article 23 stipulates that when exporting to non-states parties, states parties
“shall apply articles 3 and 4 to all exports of conventional arms within the
scope of this Treaty”. As written, this would mean that the risk assessment
criteria and the prohibitions would not apply to export of ammunition, parts,
or components. This is a major loophole, but it also provides a disincentive to
joining the treaty, as it could be easier to obtain ammunition, parts, and
components by remaining outside of the treaty. Article 23 should in fact simply
say that states that have ratified this treaty should not transfer arms to
states that have not ratified the treaty.
The draft
treaty also fails in becoming a robust transparency mechanism, as the provisions
on reporting and record-keeping no longer require records to be made public.
Records are stipulated to include export authorizations or actual exports of
arms and, “where feasible,” details of imports, transit, and transshipments of
arms. According to the current draft, the reports on exports must be submitted
annually to an ATT secretariat, but this is not enough. These records must also
be made public, as was provided for in earlier drafts.
The treaty’s
“enforcement” mechanisms are still weak. Enforcement in international treaties generally
does not refer to national measures. If the term is to be used here it should
also include measures for international enforcement mechanisms, such as an
appropriate channel for states to challenge transfers that are made despite
wide recognition of a substantial risk that it violates the treaty’s criteria
or other provisions. If this paragraph is to refer to national enforcement the
title should be changed and it should require states parties to criminalize
breaches of national law associated with treaty implementation.
Other
problems from earlier drafts still remain. The scope is too narrow and does not
capture many of the weapon systems used to commit atrocities around the world. The
references to the Geneva Conventions in article 3.3 are still too narrow.
Furthermore, article 3.3 still only prohibits transfers when the weapons are “for the purpose of facilitating the
commission of genocide, crimes against humanity, war crimes,” etc (emphasis
added). This threshold for prohibiting transfers when faced with these crimes
is much too high.
According to
the International Committee on the Red Cross, “article 3(3) is very restrictive
and is not an accurate reflection of international law. In order to effectively
encapsulate existing law, the text would be strengthened by changing it to: A State Party shall not authorize a transfer
of conventional arms within the scope of this Treaty if the transfer would facilitate the commission of
genocide, crimes against humanity, war crimes, including grave breaches of the Geneva Conventions of Common
Article 3 of the Geneva Conventions of 1949.”
There is
still no provision for victims’ assistance or even reference to existing
obligations in this regard. The draft text’s measures on regulating arms
brokers are likewise insufficient, though a slight improvement notes that
registration or authorization of brokers “may” be required. The activities
covered in the treaty’s scope are still limited to those related to “trade,”
which means that weapons that are transferred as gifts or loans or through
military assistance programmes could be exempt from the regulations mandated by
the treaty. Furthermore, the term export is often used when the term transfer
should be used to avoid loopholes.
These are not
all of the problems with the draft. There are many others that need to be
addressed, some of which may only be revealed once states parties begin
implementing the treaty. Of course, the stipulation that all amendments must be
adopted by consensus (rather than also having the option to adopt them by a 2/3
majority, as was the case in the previous draft), provides for very little
flexibility in using the amendment process as a means for improving the treaty.
That said, there
are a few improvements to the draft. For example, point 5 in the principles
section notes states parties must act in accordance with the “duty to respect
and ensure respect for international humanitarian law and to respect and ensure
human rights”. This paragraph is imperative as a guiding principle for implementation
of this treaty.
Indeed, this
treaty, if adopted, must be interpreted in the broader context of existing
international law. The provisions of this treaty cannot be read in a way to legitimize
and make legal actions that would otherwise be illegal. Furthermore, using this
treaty to provide cover for irresponsible transfers is not acceptable. A treaty
designed to regulate international transfers of arms must have as its core
objective the protection of human life and dignity, not the protection of economic
or political interests associated with the arms trade.
