by Dr. Robert Zuber, Global Action to Prevent War
The term ‘mitigation’ has been raised often in the past few
days of the ATT negotiations, specifically referring to the means by which
exporting states might help bring questionable recipient states ‘up to code’ in
order to legitimate a decision to transfer weapons. Can an exporting state actually be encouraged
within a treaty framework to work with a potential state customer to ensure
that weapons sold by a company under its jurisdiction will not be diverted to uses
inconsistent with treaty criteria, including international human rights law? This
week, it will be up to diplomats to decide the form by which and the extent to
which mitigation can and should constitute a treaty obligation.
In this last sense, mitigation is an important negotiating
principle, one which will need to be liberally deployed this week in order to
bring this treaty process to a successful conclusion.
There are times when ‘mitigation’ gets confused with kinship
or affinity. We often employ special ‘rules’
that apply to members of our own family but not to others, that cause us to accept
rude or annoying behavior in friends that we would never accept in
acquaintances, or that allow us to overlook policy or financial transgressions
in allies that would make us furious if undertaken by adversaries. We routinely
indulge mitigating circumstances based on the strength of our personal biases and
professional allegiances more than on the complex and compelling nature of the circumstances
themselves.
As final negotiations ensue, it is critical that sensitivity
to circumstances take precedence. Diplomats
understand the background for why delegations hold the positions they do during
formal debate. But they also know how to see behind the seemingly impenetrable policy
veil to ‘softer’ and more pliable positions. It is this combination of understanding
and skill that can and should form the basis for the intense ‘give and take’
that we anticipate will lead to final treaty language.
From what we have seen and heard, the culmination of these
treaty negotiations is unlikely to satisfy any state or NGO fully. However, on
the assumption that delegations are willing to soften policy judgments and
remain sensitive to circumstances that can needlessly exacerbate policy conflict,
a workable treaty can come to pass. In this context, we wish to remind
delegates of two things: First, permitting consensus on treaty language does
not presume that states will thereby accede to the treaty, let alone ratify it
in national legislatures. States can (and should) show veto restraint regarding
language to which they have objections knowing that they retain options to
distance themselves from the final outcome if national interest requires it.
Second, a successful ATT will become part of the UN’s security architecture and
as such does not need to break new ground in order to be legally (and
politically) actionable. Indeed, the more that treaty language can reference
existing UN-sanctioned obligations, texts, and institutions, the more likely
that a final treaty can both achieve broad support and have a sustainable
impact on diverted transfers.
Note: We remain grateful to the many diplomats from missions
and capitals who are committed to persevering through this difficult negotiating
process until we reach consensus on final treaty language. Many of the NGOs who have gathered around
the negotiating room will remain on site for the next week in case delegations want
additional consultation. Global Action
will be ‘on call’ as well and can be reached at: katherine@globalactionpw.org
or 212-818-1815.
