As the negotiations for an arms trade
treaty (ATT) continue for a third straight week, the urgency for compiling and
agreeing on treaty text intensifies. Delegations have been busy discussing the
various proposed sections of the treaty (including an intense discussion around
criteria throughout Thursday’s open meetings) and attempting to solidify each
section so that a full text will be possible by the conclusion of next week.
The discussion over the preamble and principles as well as the goals and
objectives has been particularly difficult given the complexity of this treaty
process. As has often been noted by delegations and civil society alike, the
ATT is of a unique nature in that it is not merely a trade treaty nor is it
purely a humanitarian instrument. Unlike the Cluster Munitions Convention of
2008 and the Anti-Personnel
Landmines Treaty of 1997, the ATT will not ban one individual category of
weapons nor will it disallow the trade in conventional weapons. Therefore, the
ATT represents a fusion of dual goals: arms control through regulation as well
as humanitarianism related to human suffering caused by the unregulated trade
in conventional arms. This duality presents a particular challenge in drafting
the beginning sections of the treaty, which will ultimately present the lens
through which to interpret the remaining articles, most importantly the
criteria and implementation sections.
The Chair of Main Committee I has
proposed treaty text related to both preamble
and principles and goals
and objectives. The discussion around these texts has focused, in part, on
the nature of these sections and what exact purpose they will serve in the
text. This is a conversation as important as the substance of the text insofar
as these sections will determine how states parties will interpret and
ultimately implement the actionable elements of the treaty, particularly how
seriously state parties will treat assessment criteria. Some delegations have
expressed support for merging the preamble and principles section. Both the
Cluster Munitions Convention and Landmines Treaty provide for only a preamble
that notes the incentive for pursuing the treaties as well as recalls the
principles of international humanitarian law and related conventions and
resolutions. Likewise, the nuclear
Non-Proliferation Treaty (NPT) includes a preamble that lays forth the
reasoning for pursuing non-proliferation as well as affirms the principles of “peaceful
uses of nuclear energy” and non-threat of force. Nevertheless, as a result of
the complexity of the ATT’s intentions, a separate section on principles could
be useful to ensure proper and consistent implementation of the Treaty by states
parties.
In the ATT context, the preamble and
principles, as in other instruments of international law, provide the rationale
for why member states are pursuing an ATT—to prevent, eradicate, and combat the
irresponsible and illicit trade in conventional arms. It is essential to
clearly outline this motivation so that this purpose is made manifest in the
subsequent treaty text. There is also still unease among delegations on how to
reference the UN Charter, i.e. whether to reference particular articles or
mention it in more general terms. Some delegations, such as Mexico, have warned
against selectivity in referring to the Charter’s principles, noting that the
Charter takes precedence over all other treaties and conventions crafted under
UN auspices. Nonetheless, given the nature of the ATT and the sensitivity it
provokes around national sovereignty related to self-defense and arms
acquisition, the most relevant principles of the Charter (such as self-defense,
right to regulate arms internally, and the right to territorial integrity)
could be referenced in the principles as a means to ensure that states parties
do not feel that their sovereign right to trade in arms is threatened
(prompting states to ‘walk away’ from the Treaty or resist ratification) and
instead focus on preventing diversion and irresponsible transfers, which should
be the Treaty’s true purpose.
The question then becomes: how do we
differentiate between the preamble and principles and the goals and objectives?
While the preamble and principles ‘set the stage,’ the goals and objectives
will play a crucial role in implementation of the treaty. As previously noted,
the ATT is a unique instrument that seeks to regulate a trade, but with a view
towards combating the dire humanitarian consequences associated with
irresponsible and illicit arms transfer. Bearing this in mind, the goals and
objectives will drive implementation and risk assessment. Therefore, these
goals must be ironclad and comprehensive so that states “shall deny a transfer”
if it is inconsistent with the goals and objectives of the treaty. It cannot be
only those in violation of the goals
and objectives as this indicates only that which goes directly against it and,
therefore, is too limiting.
Strong goals and principles will be the
linchpin to ensuring robust application of the parameters. The challenge of
agreeing on precise treaty language is formidable, especially in light of the
distinctive nature of the ATT. Treatment
of these sections of the treaty will impact greatly the effectiveness of its
future implementation.
