A verification deficit

July 14 2011, 5:50 AM  by Ray Acheson, Reaching Critical Will

A significant number of state delegations have now taken the opportunity to speak before the third ATT PrepCom on their views in respect to the Chairman’s draft paper on implementation.  Their statements have made it increasingly clear that an ATT is likely to have a substantial verification deficit.by Nathan Sears, Norman Paterson School of International Affairs, Carleton University and Reaching Critical Will, Women’s International League for Peace and Freedom

What is verification?

“Verification” is the determination of whether or not states parties to a treaty are acting in ways consistent with their treaty obligations. Verification depends on transparency (openness) and sound monitoring techniques (the collection of information on treaty implementation by states parties). At the third ATT PrepCom, delegations have held the near-unanimous position that treaty implementation should occur at the national level. However, a few delegations have questioned whether this is intended to mean that states maintain the right to subjective interpretation of treaty obligations in their design of national implementation systems, or whether it means that national implementation systems shall be organized to reflect objective standards agreed under a treaty. The delegations’ statements have shown a general preference for the former interpretation, but this presents a substantial verification problem for an ATT: if states maintain the right to determine how to implement their treaty obligations, are their actions really verifiable?

Why verify?

Verification is said to have three broad functions: detection of noncompliance; deterrence of noncompliance; and confidence-building in the effective functioning of a treaty. In negotiation, states balance these expected benefits with expected costs in terms of finance and political and commercial intrusiveness.Verification favours more intrusiveness, while politics may favour less.

In the third PrepCom, there have been a substantial number of states that have spoken generally about the need for verification in respect to an ATT, particularly states aligned with the African Group, CARICOM, and the Group of Like-Minded States as presented by Mexico. Some delegations have articulated more specific components for verification, including verification of final destination. In general, however, states have been reluctant to speak to what verification should actually look like under an ATT.

How to verify?

Verification processes ultimately depend on the specific goals, scope, and parameters of a treaty, but experience shows that there are a number of verification methods that have been consistent across different treaties. At a minimum level, verification requires transparency, which has generally translated into state parties’ reporting of relevant information. The third PrepCom has demonstrated resistance by some delegations to even the relatively minimalist provision of obligatory reporting.

Nevertheless, obligatory reporting by states parties would provide obvious verification benefits because of the opportunity to cross-check reports, particularly through annual reporting under a standardized framework (including, inter alia, information on the exporter, importer, category, units, and descriptions of arms and materials under the scope of a treaty for all transactions, as well as information on export control systems, steps taken towards implementation and enforcement of treaty obligations, and any implementation challenges). Civil society organizations and industry can also play a complimentary reporting role for an ATT—and including provisions for civil society and industry in the text of a treaty could assure their beneficial reporting role.

At a higher level, verification benefits from proactive and continuous monitoring, which has led to varying methods of on-site inspections (“regular,” “ad hoc,” or “challenge”) and fact-finding missions by experts.  The word “inspections” has been taboo throughout the third PrepCom, the sole mention being made by the delegation of the United Arab Emirates, despite the obvious utility that on-site inspections could provide in respect to verification of any provisions on marking and records-keeping, and transfer denials. Inspections could also help redress the so-called “reporting fatigue” problem, as inspections could reduce the verification burden on reporting procedures. Verification can also benefit significantly from monitoring technologies. Advanced tracing technologies (including, inter alia, GPS and nanotechnology) could possibly yield verification benefits for an ATT. Additionally, human right treaties have demonstrated a potentially useful monitoring technique for an ATT, where states parties send delegations to present their reports and respond to questions of a competent committee (e.g. an ISU or Secretariat). Finally, verification requires analysis of the information gathered.

Who verifies?

In the most effective treaties verification is entrusted to an independent organization—although this is generally not taken to impede states parties’ abilities to verify other states parties’ compliance through their own National Technical Means.The institutional framework of an ATT has been one of the more contentious issues of the third ATT PrepCom; and as we approach the end of the week, there is by no means consensus among delegations on this point. Some delegations call for the creation of an independent organization to be funded by states parties; others call for an organization created under the auspices of the UN and funded under its regular budget. A number of delegations support the creation of an Implementation Support Unit (ISU), as long as it is “small” or “lean;” a few delegations have called for a more robust Secretariat; while still other delegations have remained silent on the institutional framework of a treaty, or disagree that one should be established at all.

Assuming that states parties can come to an agreement that some form of institutional arrangement should be created under an ATT, what is to be its mandate? Of course, this necessarily depends on the objectives, scope, and parameters of a treaty. Nevertheless, many delegations have commented on various functions of a possible organization. The most commonly cited functions have been the clearinghouse activities of receiving and analyzing reports and the coordination activities of facilitating information exchange, international cooperation and assistance. These principles certainly help form the foundation of an effective treaty: reporting and information exchange are crucial to transparency, which is in turn a necessary condition for verification. International cooperation and assistance are important means—albeit likely insufficient—for boosting developing states’ capacities to implement treaty obligations. However, state delegations have been reserved in respect to creating a robust verification system under an ATT, where an ISU or Secretariat could possess, inter alia, inspection, clarification, and peer review capabilities.

How much verification is enough?

Theoretically, 100% verification is not possible. Fortunately even moderate capacities for detection of noncompliance can provide useful deterrence of noncompliance and confidence-building in the effectiveness of a treaty. Ultimately, a treaty’s verification system is determined by states political balancing of its financial costs, political intrusiveness, and expected effectiveness. The statements by state delegations during the third ATT PrepCom are making it increasingly clear that an ATT is going to have to make do with a relatively weak verification system, as delegations have frequently called for a system that is low in financial costs and not overly burdensome or intrusive for governments and industry. Nevertheless, the statement made by the delegation of Egypt is undoubtedly correct: an ATT will need to be verifiable in order to be truly effective.

Verdict on ATT verification

There are a number of problems facing an ATT verification system. First, any system will need to be able to appropriately address the likely high number of cases of technical noncompliance by states that lack the capacity to implement their treaty obligations—particularly by those states that are incapable of preventing arms from illicitly entering their territorial borders, or corrupt officials from falsifying relevant documentation. However, experience has shown that technical noncompliance is not overly problematic for treaties with robust verification systems. Second, by definition we cannot verify the compliance of non-state actors, such as brokers involved in illicit arms trading. However, this is more a theoretical problem than a real one, as we can verify compliance of states parties’ tasked with implementing treaty obligations in respect to individuals operating within their territories.

Thus, effective ATT verification is not so much a technical problem as a political one. The real challenges come from the states that see verification as too financially costly, or as potentially interfering with their security and commercial interests, including, among others, Canada, China, India, Iran, and the United States. In this view, many delegations have voiced the need to be “pragmatic” and “realistic” in formulating an ATT, but these concepts should not be synonymous with doing less in terms of verification. In fact, pragmatism and realism support verification efforts, unless these words mask intentions of weakening a treaty. Moreover, the complexity of the arms trade does not make its regulation incompatible with the verification lessons learned from existing treaties.  Reporting, peer review, monitoring technologies, and on-site inspections could constitute part of an effective ATT verification system—all of which can be done under an institutional arrangement that maintains the confidentiality of sensitive information in the interests of governments and industry.