by Katherine
Prizeman, Global Action to Prevent War
Thursday
saw lively debate over the status and nature of the parameters section of the arms
trade treaty (ATT) with two draft texts from the Chair of Main Committee I, one
of which moved the specific risk assessment criteria to the national
implementation section. While the positions of delegations varied from those
that supported the move to a large number of
countries that did not, the question still remains
how robust and comprehensive the list of criterion will be whether or not they
are placed under implementation (while noting that such a move would be very
detrimental to the effectiveness of the treaty).
In order to compile the most
vigorous list of criteria that will be consistently and effectively implemented
in national risk assessments, it is essential that each criterion be based, as
closely and frequently as possible, on existing international law obligations
as well as well-established international norms. Ensuring that the criteria are
both legally-binding and
legally-based will strengthen the validity of the criteria as well as combat
the skepticism and alarm from many delegations around the possibility of
political manipulation or subjective interpretation of the individual
criterion.
The
rule of law must permeate the ATT in all its sections in order to reinforce that
the treaty must be a legally-binding instrument that will hold states
accountable to international legal obligations and, thus, prohibit transfers of
conventional arms when there is serious risk of violations of international
human rights law (IHRL), international humanitarian law (IHL), and other
international obligations set forth under UN auspices. As the International
Committee of the Red Cross (ICRC) noted on Thursday, a treaty based on
parameters that have no firm linkages to existing international law and,
rather, represent a list of suggested items to consider when deciding whether
or not to export weapons, is potentially harmful. If under the treaty states
are permitted to continue with a transfer despite knowledge that violations of
IHL exist, the ATT would actually undermine
international law obligations under the Geneva Conventions.
Many
delegations, including Venezuela and Egypt, have expressed concern that an ATT
based on subjective criteria will lend itself to political manipulation and
contribute to furthering inequity between exporter and importer states. Other
delegations, including Indonesia and Pakistan, have made clear that there must
be an inherent balance between the rights and responsibilities of importer and
exporter states. Bearing in mind this sensitivity around the issue of fair
treatment of all states and to practically address the widespread aversion to
using Treaty criteria to reinforce an exclusive “exporters club,” it is
important to tether the criteria for transfers to existing international norms
and international law so that there is little room for prejudice and
discrimination. The focus of the ATT must not deteriorate into political
machinations over subjective criteria, but must remain steadfast on creating
and implementing clear, consistent legally-binding parameters consistent with
existing UN instruments.
Where
appropriate, references to “UN relevant instruments” should be included to
ensure consistent and objective interpretation of the criteria by all states
parties. Moreover, criteria directly
referencing serious violations of IHL and IHRL as well as violations of
international criminal law such as genocide, war crimes, and crimes against humanity
must be a priority and have no qualifiers such as “applicable”. References to
corruption should be based on language in the UN Convention against Corruption
as well as the Convention on Transnational Organized Crime. The criterion of
gender-based violence should make reference to relevant tools such as UN SecurityCouncil Resolutions 1325, 1820, 1888, and 1889; the Convention on theElimination of All Forms of Discrimination against Women (CEDAW); and other
UN-related organs and documents. Due to a lack of universal definition for
terrorism, a reference to terrorism could be linked to a clear criterion on
diversion citing language from the UN Guidelines on International Arms
Transfers that uses the phrase
“diversion of arms to unauthorized destinations and persons”. As noted by the
delegate of New Zealand on Friday morning, “non-state actor” is used in diverse
contexts of the UN and it would be unclear what the precise meaning for this
term would be in the ATT. Such ambiguity should be avoided. Furthermore,
criteria related to the undermining of international peace and security and
aggravating, prolonging, and provoking aggressions or breaches of peace could
be framed in the context of the norms and obligations enshrined in Article 1 of
UN Charter. Likewise, a criterion related to UN Security Council arms
embargoes, as has been supported by many delegations such as the EU and US,
would be completely appropriate.
Formulating clear, legally-based criteria
will enable states parties to apply them consistently with little room for
political haggling on potential politicization. International law provides an
important basis for this treaty and should remain at the heart of its
provisions so that all states parties can be held sufficiently accountable.
