by Katherine Prizeman, Global Action to Prevent War
The latest compilation draft text offered
by the President of the arms trade treaty (ATT) conference is an attempt to
incorporate the various proposals from the previous three weeks of
deliberations into treaty language and lead the way to final adoption this
Friday. The sections on implementation are of particular importance given the
structure of the ATT, as implementation will be driven primarily by national responsibilities.
Closing gaps in the implementation provisions is thus vitally important to the
success of the treaty.
An alarming addition in this section,
however, is article 6, paragraph 2 that states, “This Treaty shall not be cited
as grounds for voiding contractual obligations under defense cooperation
agreements concluded by States Parties to this Treaty.” This provision,
therefore, would allow states parties to continue to transfer arms to “honor”
contracts without due deference to changing political and security
circumstances in the receiving state. As noted by the delegation of
Liechtenstein on Tuesday afternoon, this is a serious loophole.
The division of implementation provisions
governing export, import, brokering, and transit and transshipment is an
important component of this text. It is essential that the treaty does not become
only the responsibility of exporting states, but rather, the text must lay out
the responsibilities for all states involved in arms transfers. Although the
qualifier “where necessary” weakens the strength of the provision, article 8,
paragraph 2 on imports does provide for some
measure of accountability for importing states (although not enough). It
requires that importers “shall put in place adequate measures that will allow
them, where necessary, to monitor and control imports of items covered by the
scope of the Treaty.” However, caveats such as “where necessary” mean the
provision is somewhat weak; moreover, there is no indication of recourse to
further action or accountability in the circumstance where a transit state
disagrees with an export state on the terms or legitimacy of the transfer.
Although the provisions are qualified by
national discretion regarding “feasibility” and “necessity,” the articles on
brokering and transit and transshipment are important elements for detailing
the responsibilities of all states
involved in all types of arms
transfers and, at the very least, these types of transfers are covered in
separate sections. In particular, article 9 on brokering requires that states
parties take “appropriate measures” to control brokering taking place under its
jurisdiction. Nonetheless, the details of these “measures” are obviously lacking,
which means their application will vary widely among states parties. Given how
important brokering is to the arms transfer process, it is imperative that
stronger measures on regulating brokers be mandatory in the ATT.
The sections on reporting and enforcement
has room for improvement as well, as it is riddled with qualifiers such as “as
appropriate” and “where feasible”. The text stipulates that records be kept for
a minimum of ten years “or consistent with other international commitments
applicable to the State Party.” Article 11, paragraph 3, notes that states
parties “may report” to the Implementation Support Unit (ISU) on an annual
basis regarding actions taken to address diversion, but the text does mandate
that within the first year of entry into force, the state party must submit a
report to other states parties on “relevant activities undertaken in order to
implement this Treaty”.
The text also stipulates that states
parties submit annually to the ISU a report concerning the “authorization or
actual transfer of items included in Article 2, paragraph A1,” which will be
made public by the ISU. Public records are a good step towards greater
transparency in the international arms trade. However, , the provision on “enforcement’
in article 12 refers only to the adoption of national legislation and the vague
reference to “appropriate national measures”. Enforcement is not generally used
in treaties to 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
there being wide recognition of a substantial risk that it violates the
treaty’s criteria or other provisions.
Meanwhile, the section related to the ISU
provides for a “minimized structure” with “adequate staff” to “assist States
Parties in its implementation.” This short section lays out the tasks to be
assigned to the ISU, which are administrative, logistical, and technical. It
does not include more substantive provisions related to objective oversight of
national implementation, let alone the authority to ‘flag’ potentially illicit
transfers. This implies very little independent functioning. Over the course of
the last three weeks, member states have expressed their positions on both the
nature of the proposed ISU as well as its financing and it seems that this
latest draft text reflects these dual concerns by underscoring that the ISU
will hold only administrative and technical responsibilities in a very nominal
structure.
While member
states have rightly questioned the funding sources for an ISU, the text does
note that the “core costs” would be funded by states parties, as opposed to
allocating funding from the regular UN budget, which would imply that such a
structure would be housed under the UN Office for Disarmament Affairs. Some
delegations have advocated for this intra-UN structure, including Ghana,
Ecuador, and Brazil, but such a structure might be inappropriately placed in an
office not mandated to specifically deal with arms transfers and without the
ability to provide the objective implementation oversight that an ISU should
provide.
Despite a limited scope for the proposed ISU,
the current text does take into account the possibility for an incremental
increase in its tasks. Article 13, paragraph 3e notes, the ISU shall “Perform
other duties as mandated by the Conference of States Parties.” Likewise,
Article 21, sub-paragraph 2d, notes that the Assembly of States Parties shall
“Consider the establishment of any subsidiary bodies as may be necessary to
improve the functioning of the Treaty.” These are important provisions that
grant flexibility to the ISU’s future functions so that it can adjust to
changing security circumstances. This is a position of incrementalism that has
been advocated by a variety of delegations, including the EU, Germany, Sweden, France,
and Kenya.
Furthermore, as noted by the Mexican delegation,
given the complexities of the ATT, specifically regarding its unique fusion of
regulation of trade with a view towards addressing humanitarian concerns, the
ISU should provide substantive support to assist states parties in implementing
and navigating these complexities. In this context, and given its role in
collecting and housing state reports, a useful contribution of the ISU could
be, as suggested by the Uruguay delegation last week, the compilation and distribution
of data and trend analysis of arms transfers given. The ISU should not be used
merely for circulating information, but should also provide information. As the
Ghanaian delegation affirmed, the ISU should not merely be a “post office”.
As noted by others throughout this
process, implementation will be key to the effectiveness of the ATT. The
ability of an ISU to provide oversight and sufficient enforcement of
implementation obligations must be assessed not only in the immediate future,
but (hopefully) in many meetings of states parties in the years to follow.
