The Legal Case for Including #Development in the #ArmsTreaty

May 4 2012, 9:41 AM by Oistein Thorsen

There is a clear legal basis for including development criteria in the Arms Trade Treaty (ATT), as is currently reflected in the Chair’s Draft Paper in section V(B)(5). International law requires a state to promote and not undermine development, in respect of its own citizens and all peoples affected by its actions. The following article highlights the responsibility on states to promote development of all peoples, the ‘right to development’ in international law and the importance of including development criteria in the ATT.

“We will not enjoy development without security, we will not enjoy security without development, and we will not enjoy either without respect for human rights. Unless all these causes are advanced, none will succeed.”
Former UN Secretary-General, Kofi Annan

In the spirit of Kofi Annan’s statement, the ATT Legal Response Network (ATT Legal)
has examined the legal foundation for including development criteria in the ATT. The
Chair’s draft ATT in section V(B)(5) prohibits the transfer of conventional arms if there is
a substantial risk that the transfer would ‘seriously impair poverty reduction and socio-
economic development or seriously hamper the sustainable development of the recipient
State.’ The sound legal basis for including development criteria in the ATT is found in a
wide range of international treaties, instruments and other sources of international law.
International law requires states to promote and not undermine development, in
respect of their own citizens and all peoples affected by their actions. Article 55 of the
Charter of the UN (1945), binding on all 193 member countries, recognizes that in order
to create ‘conditions of stability and well-being’ member states must aim for ‘higher
standards of living, full employment, and conditions of economic and social progress
and development’ by ensuring ‘universal respect for, and observance of, human rights
and fundamental freedoms for all’. Various articles of the Universal Declaration of
Human Rights (1948) emphasize the economic, social and cultural rights of individuals,
including ‘the right to a standard of living adequate for…health and well-being’ (Article 25).
Forming part of customary international law, these articles of the Declaration are binding
on all states. The International Covenant on Economic, Social and Cultural Rights and the
International Covenant on Civil and Political Rights further set out the fundamental rights
and freedoms which must be enjoyed in order for development to flourish and require
states to take steps to achieve the progressive realization of these rights.

States hold human rights obligations not only to their own peoples but also to others
beyond their own borders. The human rights of individuals and peoples are impacted
in both negative and positive ways by the conduct of states other than their own. The
Maastricht Principles on Extra-territorial Obligations of States in the area of Economic,
Social and Cultural Rights affirm that states are obliged to co-operate and assist other
states in realising economic, social and cultural rights of all people. Of particular relevance
to the ATT, the Maastricht Principles confirm that:

  • States must not act or omit to act such that a real risk is created of nullifying or impairing the enjoyment of economic, social and cultural rights extraterritorially (Principle 13);
  • States must conduct prior assessment, with public participation, of the risks and potential extraterritorial impacts of their laws, policies and practices on the enjoyment of economic, social and cultural rights (Principle 14);
  • States must take deliberate, concrete and targeted steps, separately, and jointly through international co-operation, to create an international enabling environment conducive to the universal fulfilment of economic, social and cultural rights, including in matters relating to bilateral and multilateral trade, investment, taxation, finance, environmental protection, and development co-operation (Principle 29);
  • States, acting separately and jointly, that are in a position to do so, must provide international assistance to contribute to the fulfilment of economic, social and cultural rights in other states (Principle 32).

Many commentators also emphasise an independent ‘right to development’ as a
fundamental human right. This interpretation is borne out in an increasing number of
international instruments, including the African Charter on Human and People’s Rights,
the Arab Charter of Human Rights, the UN General Assembly Declaration on the Right to
Development (1986) and the Vienna Declaration and Programme of Action.

International instruments relating to issues which, like the arms trade are linked with
development have integrated development considerations into regulatory frameworks.
The UN Convention Against Transnational Organized Crime (2000) and the UN Convention
Against Corruption (UNCAC) (2003) oblige states to improve accountable and transparent
government spending, tackle corruption, and investigate and prosecute corrupt
activities. The UNCAC preamble states that corruption is responsible for ‘undermining
the institutions and values of democracy, ethical values and justice and jeopardizing
sustainable development and the rule of law’. It outlines implementation measures of the
convention through processes of economic development.

The international community’s recognition of the right to development, combined
with member states’ obligations under the UN Charter, international human rights and
humanitarian law, require states to explicitly assess the development impacts of their
actions, and co-operate to eliminate obstacles to development. Development is the concern
of the international community. An ATT that does not have development as one of its
fundamental criteria would fall short of its potential.

This article was prepared by ATT Legal – a network of over 60 pro-bono lawyers providing advise on the ATT.
To solicit advise from the network please e-mail attlegalresponse[at]gmail.com
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