Final provisions

July 13 2011, 4:44 PM  by Ray Acheson 

During day three of the third arms trade treaty (ATT) preparatory committee, member states considered the final provisions for the potential treaty, which cover issues such as entry into force, withdrawal, reservations, amendments, meetings of states parties, and more. This article provides a brief overview of states’ positions on these items as indicated at this PrepCom so far.
by Ray Acheson, Reaching Critical Will of the Women’s International League for Peace and Freedom

Entry into force

  • The majority of delegations speaking on this subject supported the treaty’s entry force after the thirtieth ratification. These included Colombia, Liechtenstein, Mexico, New Zealand, Nigeria, Switzerland, Trinidad and Tobago, Uruguay, and Zambia.
  • However, Algeria, Australia, and the United Arab Emirates suggested 60 ratifications would be more reasonable.
  • Cuba, Nicaragua, the United States, and Venezuela urged for “more than 30” while Indonesia said the number of required ratifications should be “as high as possible”.
  • The Russian delegation said it should be “at least” 60.
  • The Iranian delegation suggested that 100 ratifications would be necessary.
  • Iran, Nicaragua, Syria, and Venezuela argued that all of the major arms exporting states would need to be party to the treaty in order for it to have any effect.
  • Brazil’s delegation suggested this would depend on the elements for implementation, arguing that if the treaty includes provisions on transfer denials, compulsory reporting, and other complexities, the treaty will require the accession of the major arms exporting countries to avoid discrimination.
  • However, most countries disagree with this position. Colombia, Jamaica, Japan, New Zealand, Nigeria, Norway, Peru, Sweden, Trinidad and Tobago, United States, Uruguay, and Zambia argued against requiring specific countries to ratify the treaty before it can enter into force, though the United States also said that “in best of all worlds,” the treaty would have “some portion of states that have some particular qualification,” perhaps measured by value of exports.
  • The Dutch delegation noted that the ATT addresses quality of arms transfers, not quantity, and therefore the major weapon exporters are not more important than any other states for the treaty’s effective functioning.
  • The Norwegian delegation pointed out that the only treaties with truly universal adherence, the Geneva Conventions, require only two ratifications to enter into force. Arguing that there is no link between a high threshold for the entry into force of a treaty and universal adherence to it, the Norwegian delegate also noted that if entry into force is dependent on specific countries, this gives those states a veto over the treaty’s very existence.

Withdrawal

  • Algeria and Iran’s delegations argued there is no need for provisions on withdrawal because it’s a sovereign right to withdraw from a treaty.
  • Indonesia’s delegate questioned the clause in the chair’s paper that suggests that the withdrawal “shall take effect 180 days after the date of receipt of the notification,” arguing that states should not have to endure this waiting period.
  • Agreeing that withdrawal is a sovereign right, the Uruguayan delegation argued that it’s important to be clear about provisions for withdrawal, otherwise a variety of interpretations can arise.
  • Switzerland and Uruguay suggested that states should be able to withdraw with written notification that includes an explanation of the reasons for withdrawal.
  • Uruguay’s delegation also suggested that the treaty should specify that the provisions of the treaty apply to state for as long as they are parties to it. Indonesia’s delegation also suggested that the treaty should make provisions for states to conclude their obligations to any transfers underway before they withdraw from the treaty.

Duration

  • Uruguay supported unlimited duration for the treaty.
  • Venezuela’s delegation suggested that during the initial implementation phase the treaty could be of limited duration and that its extension could be considered at RevCons.

Reservations
The chair’s text currently states, “No reservations that are incompatible with the object and purpose of the present Treaty shall be permitted.”

  • Most delegations, including those of Australia, Liechtenstein, Mexico, New Zealand, Peru, Switzerland, Trinidad and Tobago, and United Arab Emirates agreed with this provision, though several called for further elaboration regarding how and who would determine when a reservation is not admissible.
  • Mexico and Liechtenstein preferred prohibiting reservations altogether.
  • Mexico, New Zealand, and Peru urged a prohibition on reservations on the scope of the treaty.
  • Cuba and Iran’s delegations said the treaty should explicitly state the right to reservation without any qualifiers.
  • The US delegation argued that the question of reservations “gets simpler if you don’t have great detail in the treaty,” urging once more for the treaty to be as “short, simple, and easy to implement” as possible so as to not interrupt or burden the arms industry.

Amendments
The chair’s text states that once the treaty has entered into force, any state party may propose an amendment, which should be decided upon at the next scheduled review conference.

  • Liechtenstein’s delegation called for more details in the amendments section as to how and for whom amendments enter into force. It suggested making a distinction between amendments of an institutional nature, where they should enter into force for all state parties, and other types of amendments that might only enter into force for states that have ratified the amendment.
  • Brazil and Switzerland’s delegations requested more precision in outlining procedures for introducing and adopting amendments.
  • Switzerland’s delegation said the treaty text should specify the number of states required for amendment adoption.
  • Israel urged that amendments be adopted by consensus.
  • Trinidad and Tobago agreed it is important to discuss procedure but argued that it should be approached generally for now.
  • Fiji argued that if review conferences are only held every five years, it is a long time to wait for an amendment to be considered. 
  • The US, again pushing for simplicity, argued that if the treaty is sufficiently vague, state parties won’t have to worry about amending it.

Structures for meetings of state parties
The chair’s paper suggests both an assembly of state parties (ASP), which would aim to “improve the capacity of States Parties to promote and review the implementation” of the treaty, and a review conference (RevCon), which should be convened every five years after the treaty enters into force.

  • The European Union, Fiji, Japan, New Zealand, and Trinidad and Tobago voiced support for annual ASPs and five yearly RevCons. Zambia supported five yearly RevCons.
  • Japan called for the treaty text to define the roles and functions of each organ clearly.
  • Trinidad and Tobago suggested the following division of labour: that ASPs allow state parties to affirm support for treaty universality, implementation, reporting, and compliance and to submit proposals for amendments, etc. and that RevCons allow state parties, observers, and others to review the operation of the treaty subsequent to its entry into force and to address amendment proposals and to deliberate on how to encourage greater participation by non-parties and civil society.
  • Switzerland suggested the ASPs could provide a forum for information exchange; reaching agreement on additional measures for enhanced implementation, e.g. adoption of optional guidelines for implementation; and decisions on financing for an implementation support unit. RevCons should consider adoption of amendments and other review functions.
  • The European Union suggested that ASPs support the smooth functioning of the treaty by promoting dialogue, ensuring consultations, and conducting preparatory work for the RevCons, while the RevCons would review the implementation and operation and status of the treaty and update the treaty annexes as necessary.
  • The Indian delegation suggested a similar division of labour to the EU, saying that the objective of ASPs should be to facilitate interaction and cooperation among state parties while the RevCons should be for reviewing and promoting implementation of the treaty. It argued that further detail in the treaty text would be unnecessary.
  • Colombia and Peru suggested that bearing in mind technological advancements, the treaty should establish a specific review mechanism on the scope of treaty.
  • Sweden’s delegation urged that the text add industry to the list of other groups to participate in RevCons.
  • New Zealand’s delegation noted that asking state parties to report annually to ASPs might not be necessary unless new information on specific transfers is available.
  • New Zealand also suggested that the ASPs could include a peer engagement mechanism as suggested by its non-paper.
  • The Netherlands argued that participation of civil society in RevCons is of great benefit and therefore shouldn’t be subject to discussion at PrepComs but should be automatically assumed.
  • Colombia argued that having both ASPs and RevCons would result in duplication of efforts and either or the other body should assume all of the responsibilities suggested above.
  • The Iranian delegation suggested that the treaty should only refer to a five year RevCon and that the matter of ASPs should be left up to the first RevCon to decide.

Consultations
The chair’s paper suggests that state parties “may consult each other and request information for any matter regarding the implementation and operation” of the treaty and that they “shall provide information requested in accordance with their domestic legal systems.”

  • India’s delegation argued that making it mandatory for states to provide information requested could infringe on security and sovereignty.

Dispute settlement
The chair’s text suggests that state parties “shall consult and cooperate with each other to settle any dispute that may arise with regard to the application or the interpretation” of the treaty.

  • Israel’s delegation described this language as balanced and as a good basis for moving forward.
  • Sweden’s delegation expressed support for the idea of a cooperative approach to dispute settlement, but argued that any mechanism should be firmly placed in the context of treaty implementation not application, the latter of which it sees as a matter of sovereign decision-making.
  • The Netherlands emphasized that nothing in treaty should be used to establish a mandatory transfer of arms and that the dispute settlement provision could be problematic in this way.
  • Some member states, including Mexico and Trinidad and Tobago, feel that the treaty’s dispute settlement mechanism should be able to address all disputes that arise in interpretation and implementation of treaty—not simply to denial of transfer but also to other parts of the treaty.
  • Colombia and Uruguay urged for the language in this section to be strengthened. Uruguay’s delegation suggested states should consider the Convention on Cluster Munitions article on dispute settlements, which specifies:
  • When a dispute arises between two or more States Parties relating to the interpretation or application of this Convention, the States Parties concerned shall consult together with a view to the expeditious settlement of the dispute by negotiation or by other peaceful means of their choice, including recourse to the Meeting of States Parties and referral to the International Court of Justice in conformity with the Statute of the Court.
  • Trinidad and Tobago’s delegation suggested looking to environmental law treaties, which provide for a “softer approach” to treaty non-compliance, such as by encouraging states to assist each other in implementation.
  • India’s delegation said this section should be limited to the current language, while Cuba’s delegation expressed concern about the reference possible references to the International Court of Justice.

Other provisions

  • Colombia, Japan, Mexico, Sweden, and Uruguay urged that the treaty include a section on the relationship between state parties and non-state parties. Colombia and Sweden’s delegations suggested that the treaty should specify that while state parties may export arms to non-state parties, the treaty obligations will still apply to these exports.
  • Australia, Japan, and Indonesia suggested a section on the relationship between the ATT and other agreements. Australia’s delegation said the treaty should make it clear that the ATT shall not affect state parties from entering into other agreements as long as the provisions are compatible.
  • The Swiss and Jamaican delegation suggested a section on financial provisions addressing the financing of such mechanisms as the ISU, ASPs, RevCons, and treaty depository.
  • The Zambian delegation said it supported the model of UN assessment for financial provisions.
  • Syria’s delegation suggested that victim assistance should be funded by the enormous sums reaped by exporting states.
  • Syria also suggested the treaty provide for dealing with conventional weapon production and stockpiling.