Creating strong and unequivocal obligations on States Parties in the ATT
July 23 2012, 2:41 PM by Marta Muixa Casaldaliga
The ATT must contain the strong and unequivocal language of “shall” or “shall not” which reflect the obligation to act or refrain from acting in a certain manner. This is particularly important in prohibiting certain types of transfers on the basis of arms transfer criteria. The criteria following “shall”/“shall not” determine the content of the obligation. This means that the ATT must contain both the mandatory language of “shall”/“shall not” and clear, comprehensive criteria in order to create strong and unequivocal obligations on States Parties.
An ATT that is mandated to be “a legally binding instrument on the highest possible common international standards” must use this language linked to the most comprehensive criteria. Consistent with General Assembly Resolutions establishing this process, Ban Ki Moon underlined the fundamental purpose of the Arms Trade Treaty at the start of the Conference: “Our common goal is clear: a robust and legally binding Arms Trade Treaty that will have a real impact on the lives of those millions of people suffering from the consequences of armed conflict, repression and armed violence”. A lower standard fails to achieve these purposes, and undermines existing international hu manitarian and human rights law.
Many arms transfer instruments use “shall” or “shall not” to prohibit or deny transfers on the basis of specified criteria, including where an assessment determines that those arms may be used for violations of international human rights law and international humanitarian law. (cf- The Nairobi Protocol Best Practice Guidelines (p25-6), the EU Common Position (Article 2), the OAS Model Regulations for the Control of Brokers of Firearms (Article 5) and the Central African Convention for the Control of SALW (Article 5)).
Clear language is better for trade because it enables all parties to rely on and follow the same rules and common framework. This ensures efficiency and legal certainty, and avoids numerous debates about treaty interpretation. It is also easier to defend legal transfers if the language is clear. States will be able to rely on unequivocal language to show that they are in compliance with the legal framework.
The simple inclusion of “shall” or “shall not” is not a victory in itself. In the context of the criteria/parameters section, the strenght of using “shall” can be severly watered-down depending on the language following after it. While “shall” is unequivocal, states should be wary of attempts to use “shall” followed by an exclusion, qualification or condition as these usually remove the strength of the prohibitive language. The language of “shall” or “shall not”, although strong, is insufficient unless it is paired with ewually strong language in the body.