Why and what for: the importance of treaty objectives for implementation

July 11 2011, 2:23 PM  by Ray Acheson
On the opening day of the third arms trade treaty (ATT) preparatory committee, one of the most fundamental challenges of the upcoming negotiations was starkly underscored by the competing goals and visions for the ATT outlined by participating delegations. While this week’s discussions are to focus primarily on matters of implementation, it is clear that the as-of-yet undetermined objectives of the treaty will be the most controversial elements for negotiation.by Ray Acheson, Reaching Critical Will of the Women’s International League for Peace and Freedom

The Costa Rican delegation, speaking strongly of its desire to counter the violence of both the legal and illegal trade in weapons, emphasized that the ATT should be as comprehensive and rigorous as possible. It argued that the objective of the ATT is to close loopholes in international law and reduce the violence generated by abuse of arms. Many other delegations have issued their strong support throughout the ATT process for a robust, legally-binding instrument that will help prevent violations of international humanitarian law and human rights law, reduce conflict and armed violence, and mitigate the effects of the trade and use of arms on sustainable development.

The US delegation, on the other hand, was equally emphatic that the ATT must not seek to reduce violence, conflict, or abuses. Noting that the treaty might make such things more difficult, the US delegate argued that all attempts to eliminate these practices globally have failed and that the ATT will fail also if this is its mandate. Instead, the US delegation focused on what it seeks to get out of such the treaty, explaining that “an effective ATT will make it easier to acquire and control weapons legitimately required for security” and that the “internationalization of commerce in conventional arms will be improved” for manufacturers and suppliers of weapons.

This stark difference in opinion over the primary objective of the treaty has important consequences for the scope of items and activities that will be included in the treaty, as well as the criteria established for arms transfer decisions and the requirements and mechanisms for implementation. The Russian delegation was correct in noting that holding discussions about implementation before establishing the objectives and parameters of the treaty is like “building the roof without having built the foundation or the walls.” It is difficult to stake out a position on what implementation mechanism will be necessary and effective when it is not clear what exactly the treaty is setting out to do. While governments and NGOs can create wish lists of implementation, compliance, verification, and monitoring mechanisms tailored to their ideal treaty, having a more concrete notion of the key provisions of the treaty is vital to determining the level of detail necessary for the treaty’s implementation requirements.

For example, the US delegation argued that the treaty should not necessarily establish an objective rationale for the denial of arms transfers but should instead simply stipulate that no transfer should occur without official authorization. The Indian delegation likewise called for “simple” guidelines for implementation, arguing that the treaty should be “self-implementable” at the national level without implementation bodies or follow-up mechanisms written into the treaty text. Similarly, the US delegation emphasized that the treaty should establish mechanisms to ensure competent decision-making, but that it must be careful not to tell all states how to make those decisions. In this context, issues like brokering, transshipment, and re-export will be “too complicated” for the treaty to address and, the US delegation suggested, the treaty would be “more effective” if it just says that each state has to establish for itself a means for handling those subjects. However, the overwhelming majority of delegations (including the Caribbean Community and the European Union) expressed support for having these activities included, with specific implementation requirements, in the treaty text.

Another example is the establishment of an implementation support unit (ISU) for the treaty. Many delegations and NGOs are keen on the establishment of an ISU that could, inter alia, serve as a repository for national reports; provide administrative and technical support to states parties’ in their efforts to implement the treaty; convene meetings to review implementation; assist with peer review of national implementation systems; and help match assistance needs and resources. However, it is important to bear in mind that the operation of the ISU will flow from the treaty’s agreed objectives and parameters.

Some states would like the ISU to review and analyze data in national reports and even to provide verification services to ensure states parties are complying with the treaty. A verification regime would require diverse mandates and tools depending on what, exactly, is being verified—i.e. whether it is seeking to verify that an arms transfer has been delivered to the correct end-user, or whether or not it has facilitated genocide, or it has resulted in a lucrative business transaction for the manufacturer or supplier. Would a verification regime be desirable if its purpose is to verify that weapons used in the commission of violence were properly transferred and licensed?

Furthermore, the question of where the ISU would be housed must also be determined by the treaty’s function. If the ISU is to be hosted by the United Nations, the ISU’s mandate to facilitate implementation of the ATT should by no means detract from the UN’s core role in promoting disarmament and the effective regulation of armaments. As many delegations have said time and again, the ATT should be viewed as a floor, not a ceiling, for the regulation of the arms trade. States should be encouraged to adopt stricter standards. Any ATT must not be used as an excuse for the UN to limit or curtail its advocacy for more effective regulation and the strengthened application of international humanitarian and human rights law. Such a role may be especially important, especially if that treaty turns out to not be as robust as the majority of member states would like.

Wherever it is housed, the ISU will have to retain independence from states parties, especially if it is to have any analytical and/or verification responsibilities. In the end, it might be best to set up an ISU to help facilitate implementation and to assist with annual meetings, etc., and a separate, independent verification body. Establishing any of these bodies will be difficult, however, as a few key states have emphasized their desire for “minimal bureaucracy”.  For example, the UK delegation urged the creation only of a minimally mandated ISU created by states parties for states parties.

Frankly, it is difficult to know at this moment what the treaty will accomplish in the end, and thus how many financial and human resources should be dedicated internationally and nationally to facilitating its implementation and ensuring compliance. If the treaty, once negotiated and adopted, is simply a vehicle to facilitate the conduct of the arms industry—the manufacture, sale, trade, and use of weapons—should the treaty’s implementation be assisted by the United Nations? Should civil society spend their time and energy monitoring compliance? On the other hand, if the treaty is as robust and game-changing as many governments and NGOs wish, then establishing equally robust implementation and compliance mechanisms will be vital to ensure its success.

As the Spanish delegation said on the opening day, we should be able to shape an instrument that can tackle the complex requirements of today’s world and our work should be motivated by the highest level of ambition. Civil society has gathered to promote a strong and robust ATT that truly enhances human security rather than the coffers of the arms producers and we look forward to maintaining and further developing our high ambitions throughout and beyond the ATT’s negotiation.