ATT 2nd PrepCom: A critical look at criteria

March 1 2011, 5:43 PM by Ray Acheson, Reaching Critical Will of the Women’s International League for Peace and Freedom

The second day of the arms trade treaty (ATT) preparatory committee focused on potential criteria that states would apply to determine whether or not an arms transfer should be authorized under the treaty. The discussion proved even more contentious than that over scope. Several states are concerned that if the criteria are too strict so as to limit trade, or too vague so as to be open to interpretation, the ATT will be used as a tool to deny arms to certain countries for political, rather than legal, reasons. The majority, however, seem more concerned that the ATT contribute substantially to reducing the human suffering caused be irresponsible, unregulated trade in conventional weapons.

Costa Rica’s delegation tried to alleviate some of the tension between these two camps, emphasizing that the comprehensive criteria that appear to enjoy majority support espouse a preventative approach to illegal or irresponsible arms transfers—that these criteria aim to prevent transfers when there is credible and reliable information to indication that there is a clear risk of misuse. The delegation argued that this differs fundamentally from a punitive approach prohibiting states from carrying out transfers when the exporters or importers have a bad record when it comes to human rights, armed violence, etc.

Regardless of the objectives of the treaty, Costa Rica’s delegation argued, the international community cannot afford to produce an incomplete, weak, or ineffective treaty. And it stressed that an even more immediately is a basic moral imperative to design an effective instrument to regulate an industry that lacks comprehensive international control.

At the base of the tension between those who want strict criteria and those who are concerned about the potential misapplication or manipulation of criteria is a fundamental disagreement over the purpose of the ATT. Some states want the treaty to restrict arms transfers to ensure that they do not contribute to violations of international humanitarian law or human rights, to genocide or crimes against humanity, to terrorism or crime, etc. Others, on the other hand, want the treaty to regulate trade in a way that actually promotes and facilitates the arms trade. The Egyptian delegation, for example, argued that the criteria should not just consist of a list of restrictive controls but should also include incentives for arms trade. To this end, the Egyptian delegation suggested that in order to reduce the “excessive accumulation of conventional weapons,” the ATT should promote the arms trade “as a means to reduce such stockpiles”. Further, the Egyptian delegation argued that if an importing state meets all the criteria for a transfer, the exporting state must make the requested transfer. Other delegations, such as that of the Netherlands, expressly disagreed with this position, insisting that the aim of the ATT is not to facilitate increased trade.

These fundamental disagreements animated most of the discussion on Tuesday, which primarily focused on the Chair’s informal paper on criteria. The following is a brief account of various delegations’ positions on this paper and on the issue of criteria in general. (This is not necessarily a comprehensive accounting of state positions.)

Treaty coverage:

  • Treaty should only cover import and export: Iran
  • Treaty should cover all types of transactions, such as import, export, transit, brokering, etc: Bangladesh, Benin, Egypt, Liechtenstein, Mexico, New Zealand
  • Other activities to be covered: Iran’s delegation suggested the treaty should cover weapon sharing and transfers of conventional weapons among members of military. Iran also asked for clarification on the exemption of transfers to a nation’s own troops deployed abroad, pointing out that in such circumstances, often the weapons are ultimately transferred to the host country.

Specific criteria regarding international obligations:

  • No transfer to nonstate actors: Belarus, Brazil, China, Ecuador, India, Russia
  • Compliance with UN Security Council arms embargoes and sanctions: Burkina Faso, Caribbean Community, China, Egypt, European Union, Indonesia, Jamaica, Senegal, Singapore, Suriname, Uruguay
    • The Syrian and Iranian delegations argued that this should not be included in the treaty. The Syrian delegation said that it does not see the relationship between the ATT and the UN Security Council. The Iranian delegation argued that it should be excluded because of “existing criticism of the legality” of UNSC embargoes.
  • Compliance with regional and subregional arms embargoes and sanctions: European Union
    • Some delegations specifically argued against including these embargoes as criteria, including Brazil, China, Egypt, India, Indonesia, and Syria, arguing that regional or subregional embargoes should only be employed within regions and should not affect trade between countries of different regions.
  • Compliance with other international and/or regional arrangements: Burkina Faso, European Union, Mexico, Senegal, Suriname, Trinidad and Tobago
    • The Mexican delegation emphasized that this should only apply if the arrangements directly related to the arms trade.

Specific criteria regarding risk assessment:

  • Risk of violation of violation of international humanitarian law and/or human rights: Australia, Austria, Bangladesh, Burkina Faso, Burundi, Caribbean Community, Costa Rica, Ecuador, European Union, Finland, France, ICRC, Jamaica, Liechtenstein, Mexico, Norway, Rwanda, Senegal, Suriname, Switzerland, Trinidad and Tobago, Uruguay
    • China’s delegation argued that while it “understands the logic” behind including language on IHL and human rights, these are “complicated issues,” “politically sensitive,” and “often difficult to make a balanced judgment” about due to “many complicated factors”. It noted that not all countries have subscribed to all the conventions in the IHL/human rights regime and that there are differences regarding international obligations in this regard. China’s delegation stated that the language in the treaty should make clear that countries are only bound by the conventions to which they have subscribed.
    • The Cuban and Thai delegations argued that claims of violations of human rights are often politicized; Thailand’s delegation argued, “unless clear links between an arms transfer and grave human rights violations are clearly established, any attempt to use human rights to prohibit an arms transfer cannot be allowed.”
    • The Syrian delegation outright called for this criterion’s deletion saying that in spite of its respect for the “noble principles” of IHL and human rights, “there is possibility that these issues could be misinterpreted and misused and that is almost certain to happen.” It asked, which authority will determine whether or not there has been a violation?
  • Risk of crimes against humanity or genocide: ICRC, Norway, Senegal
  • Risk of impact on existing conflicts and/or on peace and security: Burkina Faso, Burundi, Caribbean Community, Costa Rica, Ecuador, European Union, India, Norway, Senegal, Uruguay
    • The delegations of Ecuador and India argued that this criterion should only refer to international peace and security or international conflicts, not to regional or subregional issues. The Cuban delegation argued against the inclusion of this criterion, asking, how and who shall decide that an arms transfer will have an effect on peace and security? And, would this assessment be carried out unilaterally or internationally?
  • Risk of diversion to unauthorized end-users or illicit market: Burkina Faso, Burundi, Costa Rica, European Union, Finland, Jamaica, Norway, Rwanda, Senegal, Suriname
  • Risk of impact on socioeconomic development or poverty reduction efforts: Bangladesh, Burkina Faso, Costa Rica, European Union, France, Norway, Senegal, Switzerland, Trinidad and Tobago
    • Some delegations specifically argued against the inclusion of such criteria. Brazil, Cuba, and Syria’s delegations argued that there is no agreed methodology for measuring the impact of arms transfer on poverty reduction efforts or socioeconomic development. (However, as Ben Murphy of Oxfam Australia noted in yesterday’s edition of the ATT Monitor, there are indeed specific measurable of development that could be included in the ATT).
    • China’s delegation argued that that while regulating the arms trade might bring about positive socioeconomic development, it is not appropriate to include its protection as a criterion for an arms transfer. Indonesia’s delegation argued this issue is regulated by other regimes.
  • Risk of corruption: Austria, Costa Rica, European Union, Finland, France, Jamaica, Mexico, Trinidad and Tobago
    • Trinidad and Tobago and Jamaica called for clarification as to what constitutes persistent pattern of corruption and who would make that determination. The US delegation said it is “perplexed” about how one would find criteria to determine what would contribute to a pattern of persistent corruption.
  • Risk of excessive accumulation of weapons: Jamaica, Senegal
    • Brazil, Cuba, Ecuador, and Syria argued for removal of reference to excessive accumulation of conventional weapons, arguing this is subjective. The Egyptian delegation suggested that the treaty should consider promoting arms trade as a means to reduce such stockpiles. The Cuban delegation questioned, who would decide that there is an excessive accumulation of stockpiles, and, would this apply to main arms producers, which have largest stockpiles?
  • Consideration of security needs of a state: No state explicitly supported this criterion. The US, Indian, and Syrian delegations argued against its inclusion, arguing that it conflicts with states’ right to acquire arms and questioning what authority would be competent to identify what the security needs of another state are. Suriname also argued against this criterion, saying it could lead to inconsistent applications.
  • Sources of information for investigation
  • State level and/or relevant UN bodies only: Cuba, Egypt, European Union
  • Others with caveats: Ecuador suggested that information should only be accepted from NGOs with ECOSOC accreditation.
    • Brazil’s delegation argued that a necessary feature of information sharing is that a potential recipient state should have the possibility of defending itself against any “accusations against it”.
    • Japan’s delegation noted that the quality of information, especially its accuracy and reliability, needs to be carefully evaluated. It argued that states have a responsibility to explain how their decision is consistent with treaty obligations and emphasized that accountability is a key factor to ensure compliance.
    • The Egyptian delegation argued against consideration from any sources other than the state parties to the treaty or the relevant competent bodies of the UN. The Cuban delegation said the treaty should take care not to establish any information sharing mechanisms that could jeopardize the national security of certain states.
    • The US delegation declared that the entire section of sources of information should be deleted. It argued that while states need to evaluate potential transfers on the basis of information, since the final decision is a sovereign national decision, it would be inappropriate for the treaty to start “dictating” the bases of information for such decisions.

Other issues:

  • Treaty should of states’ right to self-defence and right to acquire arms: Bangladesh, Caribbean Community, China, Iran, Jamaica, Russia, Singapore, Suriname, Syria, Zimbabwe
    • The Syrian delegation also argued that the treaty should reaffirm the right of people living under foreign occupation to defend themselves.
  • Treaty should ensure no trade to states that have or intend to violate territorial integrity of another state: Ecuador, Indonesia, Iran
    • The Iranian delegation also urged that the treaty ban export from and import to countries that invade the territory of other countries.
  • Treaty should take into consideration export of arms to countries that lack legitimacy to govern: Liberia
  • Arms production: Iran’s delegation suggested the treaty consider including provisions for the general reduction of arms production in line with promoting the principles contained in article 26 of the UN Charter. The delegations of Argentina, Iran, and Uruguay argued that the main conventional weapon exporters and producers bear additional responsibilities and must carry out additional controls, which should be reflected in the treaty.
    • Algeria’s delegation argued that genuine efforts to prevent adverse consequences of the arms trade must consider not only consider constraints on transfers and trade but the factors and motives promoting the development, sale, and transfer of weapons. It argued, the historical experience indicates that controls on trade in arms cannot be divorced from the causes of production and sale. Arms transfers are purported to be driven by strategic considerations, yet the major motivation for transfers is often the profits derived from the sale of weapons, especially advanced weapon systems. Therefore, the Algerian delegation argued, the ATT deliberations must include the production and development of conventional arms.
  • Verification: The delegation of Uruguay urged the ATT process to establish a verification mechanism to determine whether or not the criteria have been upheld by the national authorities under the treaty. Noting that this could be discussed at subsequent PrepComs, the Uruguay delegate emphasized that the viability and feasibility of the criteria discussed today is linked to susceptibility of the criteria to verification.
  • Other: Bangladesh’s delegation listed a number of additional possible issues for consideration, including provisions for the safe destruction of stockpiles, stockpile management, establishment of national arms control agencies, restrictions of arms trading for minerals, food, or narcotics, insistence on marking and tracing of weapons, and integration of the treaty with the goals of the Millennium Development Goals.
    • The Russian delegation called for the ATT process to consider weapon manufacture, storage, transportation, collection, seizure, discarding, disposal, and sales to private persons. It noted that some would argue that these aspects have nothing to do with the arms trade, but argued these are all integral parts of arms circulation and that there are diversion risks during any of these stages. Without due control over each of them, the Russians argued, any attempt to counter illicit arms trafficking will be ineffective.

 

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