by Katherine Prizeman, Global Action to Prevent War
The text issued by the Chair of Main
Committee II on implementation on Monday morning continues to be discussed as
member states are grappling with issues such as national authorization systems,
enforcement, and record-keeping. While the paper addresses many important
components such as inspections and seizures (paragraph 16), criminal and civil
penalties for breaches of national legislation regarding implementation (paragraph
17), and diversion (paragraphs 19–20), perhaps the most critical part of this
section is that which deals with export and import, as these are the primary
means of transfer that an ATT would cover.
It is essential that the national
implementation section regarding export and import lays forth strong language
that obligates states parties to conduct assessments according to the criteria provided
for in previous articles of the treaty in an objective and consistent manner.
The implementation section should clearly reinforce the role of the criteria in
authorization assessments as both necessary and legally-binding. Implementation
must not serve as a means of “softening” the strength and role of the
legally-binding criteria through qualifying assessments with conditions justified
only by “national discretion”.
The Chair’s text currently incorporates
multiple qualifiers including “as requested,” “appropriate and relevant,” and
“where necessary” in relation to export and import assessment. For instance,
paragraph 6 states, “Each State Party shall conduct assessments, in accordance
with the criteria/parameters as set out in Article XX, including end-user
certification, as requested, and to verify the delivery to an approved
end-user.” As noted by the delegations of Mexico and CARICOM during Monday
afternoon’s plenary, the phrase “as requested” in paragraph 6 is unclear since
it is referring to what is already noted as a requirement under the criteria
section. If this phrase refers instead to the end-user certification, this too
is an unfortunate qualifier that serves to dilute the strength of the exporting
state assessment obligations. Although such an end-user certification concept
would need to be more clearly illustrated regarding how it would be applied
during assessments (as noted by the UK and Germany), it remains an important
component of preventing diversion and should be required under national
implementation provisions.
While the Chair’s text lacks some clarity
and forcefulness, the President’s paper from 3 July 2012 provides solid
language with regards to national authorization systems stating, “Each State
Party shall conduct assessments whether to approve, refuse, suspend or revoke
authorizations for the export of conventional arms under the scope of this
Treaty, in accordance with the criteria set out in Article XX.” Although the
provision in the President’s paper lacks reference to end-user certification,
it does spell out the various options related to authorization “without
condition” and clearly links state assessment to the criteria provided for in
the Treaty.
Furthermore, paragraph 7 of the Chair’s
text states that signatories “shall make available, upon request, appropriate
and relevant details of the authorization … upon request prior to
authorization.” While the debate over denial notifications and information
exchange remains controversial, transparency related to transfer decisions,
whether authorizations or denials, is at the heart of the ATT’s effectiveness.
Qualifying information exchange regarding assessments by weakening its
obligatory nature tempers the authority of the criteria against which the
assessments are carried out. Likewise, as expressed in paragraph 10 of the
Chair’s proposed text, importing states must also have access to information
concerning potential authorizations from the exporting state such that
information exchange goes both ways and assessments are based on the most
consistent and credible information possible. Therefore, it would be wise to
include an important provision from the President’s 2012 paper that states,
“Importing States Parties shall take measures to ensure that appropriate and
relevant information is provided, upon request, to the exporting State Party to
assist the exporting State in its criteria assessment and to assist in
verifying end users.” This statement appropriately incorporates the obligation
of information exchange grounded in the criteria as well as end-user
certification.
National
implementation will be an important contributing factor to the Treaty’s
effectiveness insofar as states parties apply Treaty obligations transparently
and consistently. Nevertheless, it is essential to keep national implementation
measures grounded in the criteria and parameters that must guide whether or not
a transfer will be authorized.
