Nothing Subjective About Applying International Law to Arms Transfers in the #Armstreaty

March 5 2012, 9:35 AM  by Oistein Thorsen

The ATT Legal team was active during the Fourth ATT PrepCom February 2012, providing legal advice on questions that arose. Of particular interest was a question regarding the “criteria” section of the Chairman’s Paper. Some have expressed concern that certain of the proposed criteria might leave excessive room for subjective interpretation by a State Party, however, ATT Legal finds this concern to be unfounded. This ATT Legal article finds the criteria in section five of the draft Chair’s text are based on accepted standards of international law as embodied in numerous international
agreements and UN resolutions.

Most proposals for an Arms Trade Treaty seek to prevent international arms transfers which would involve serious violations of international humanitarian law or international human rights law, serious violations of international criminal law, including genocide, crimes against humanity, and war crimes, provoking or prolonging armed conflict, undermining efforts at sustainable development, or aiding in transnational organized crime or in acts of terrorism. All of these standards are included in the section on “Criteria” in the Chairman’s Draft Paper dated 13 July 2011. Some have expressed concern that certain of the proposed criteria might leave excessive room for subjective interpretation by a State Party.

 On closer examination, however, that concern proves to be unfounded. The criteria in question have been articulated and developed in many previous United Nations resolutions and international agreements, and provide a sound basis for objective interpretation and application.

 For example, the standards of international humanitarian law (IHL) have been extensively developed through such sources as the Geneva Conventions of 1949, declarations of the International Committee of the Red Cross/Red Crescent (e.g. Rule 144 of the ICRC Study on Customary IHL) and numerous UN resolutions. The same is true with respect to prohibitions against genocide (e.g. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide), war crimes (e.g. Article 8 of the Rome Statute of the International Criminal Court), and crimes against humanity (e.g. the Statute of the International Criminal Tribunal for Former Yugoslavia). These criteria have already been incorporated in a number of previous international agreements on arms transfers, e.g. the Organization for Security and Cooperation in Europe Document on Small Arms and Light Weapons (2000), the Wassenaar Arrangement, and a number of regional agreements such as the Economic Community of West African States Convention on Small Arms and Light Weapons (2006). Similarly, the standards of international human rights law have been extensively developed and documented following the adoption of the Universal Declaration of Human Rights, e.g. in the International Covenant on Civil and Political Rights, and in numerous regional documents such as the African Charter on Human and Peoples’ Rights.

 With respect to the proposed provision against transfers supporting terrorist acts, terrorism has already been the subject of numerous UN resolutions and international agreements under UN auspices, including for example the UN Global Counter-Terrorism Strategy, adopted by the General Assembly 8 September 2006, two subsequent GA resolutions on the implementation of that strategy (A/RES/62/272, 2008, and A/RES/64/297, 2010), the 1997 International Convention for the Suppression of Terrorist Bombings, the 1999 International Convention for the Suppression of Financing Terrorism, and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism. As to transfers which risk supporting organized crime, clear definitions and guidelines are found in such sources as the UN Convention Against Transnational Organized Crime.

 Objective standards are also available for the proposed provisions on provoking or prolonging armed conflict and on undermining efforts at sustained development and the reduction of poverty. The existence of risks to peace and security can be evaluated under specific criteria, such as whether a given area has a recent history of armed conflict. Instances of armed conflict and related instability are regularly tracked and documented by the UN and its specialized agencies. The 189 countries that adopted the Millennium Development Goals (MDGs) in 2000 established eight measurable standards for the evaluation of sustainable development, and the UN has issued detailed periodic reports on progress toward achievement of the MDGs. Numerous reports have documented the adverse effect on sustainable development of diverting economic resources to arms purchases. The direct effects of armed conflict on economic development, through such results as the disruption of agriculture and internal markets, the destruction or overburdening of health care facilities, the displacement of populations, and the disruption of education, are specifically and objectively verifiable. The World Health Organization has also extensively documented the results of armed conflict, and of the diversion of economic resources, on objectively measurable areas of public health, such as rates of child and maternal mortality and the prevalence of infectious disease.

 It could scarcely be argued that there is any vagueness or ambiguity in proposed provisions against arms transfers which would violate applicable Security Council resolutions, or would violate the obligations of a State Party under the UN Charter, or under other treaties to which it is a party.

 In summary, there is nothing unduly subjective in the proposed criteria. When construed in good faith, as is required by Article 26 of the Vienna Convention on the Law of Treaties and by customary international law, the criteria are susceptible to clear interpretation and to consistent and nondiscriminatory application.

 The ATT Legal team looks forward to providing you legal assistance between now and the July Treaty Negotiations. Please contact Gene Sullivan, ATT Legal Response Network Coordinator, at attlegalresponse[at]gmail[dot]com for assistance.