22 March 2013, Vol. 6, No. 5
Legal scrubbing with some substantial washing
Katherine Prizeman | Global Action to Prevent War
While some delegations continued to note significant and substantial “loopholes” in the draft arms trade treaty (ATT) text, the delegation of China on Thursday said that states needed to be realistic in terms of the probability of closing these loopholes. But as has been previously noted by many civil society colleagues in this ATT Monitor, as well as 116 states in a joint statement on the opening day of these negotiations, an ATT with numerous and substantial loopholes is not only not worth adopting, but potentially dangerous should it legitimize illicit and irresponsible transfer practices. Closing the loopholes is precisely what delegations need to be focused on at this point in the negotiations.
On Wednesday, the President circulated his first Non-Paper, which is essentially a “legal scrub” of the 26 July draft text. On Thursday, many delegations took the floor to address some of the specific substantive changes made in this new version. While most delegations praised the changes in terms of improving the text’s legal character, positions remain diverse on the substantive issues related to preamble and principles, object and purpose, scope, criteria, implementation, and final provisions.
Regarding scope, the European Union, along with many other delegations, rightly noted that the replacement of “conventional arms covered under the scope of the Treaty” with “conventional arms covered under Article 2(1)” is of concern. The delegations of the EU and Switzerland explained that this would ostensibly exclude several types of control foreseen by the Treaty, particularly types of items that are mentioned elsewhere in the text, but not explicitly covered in article 2. This includes the items included in Article 6(5) and 6(6), which obligate states to establish national control systems to regulate the export of ammunition/munitions and parts and components, respectively.
Indeed, such an explicit reference throughout the text to article 2(1) would seriously limit the applicability of these articles to such items not directly referenced in the so-called “primary” scope in article 2. Dissatisfaction with the coverage of ammunition was reiterated by at least 30 delegations; with Mali, Nigeria, and St. Vincent and Grenadines emphasizing the vast majority of delegations support the inclusion of ammunition in the scope.. The US delegation, however, reiterated that it is “unalterably” opposed to the inclusion of ammunition in the scope of the Treaty.
Prohibitions and Criteria
Although no major substantive changes were made in these sections, the articles on prohibitions and national assessment also garnered much attention. They will inarguably need to be seriously amended for the Treaty to be improved enough to make a difference in practice. The debate between “overriding” and “substantial” continued throughout the day. This debate will be a crucial one for evaluating the ultimate level of strength the Treaty will embody. As noted by Ray Acheson in the ATT Monitor 6.4, “Insisting on ‘overriding’ is to insist one’s other priorities—political, economic, or strategic—take precedence over human lives.”
States addressed some of the important improvements in the text pertaining to implementation, though some also raised points of continued dissatisfaction. The Swiss delegation welcomed the addition of paragraph 1 under article 6 obligating states to establish and maintain a national control list to regulate export, but proposed that it be moved to the article on ‘General Implementation’ so that it would cover all types of transfers. Furthermore, the delegation of Mexico, on behalf of a group of Latin American and Caribbean states, as well as Iceland and Norway, stated that the word “may” should be replaced throughout the text with a more binding term such as “shall” rather than “is encouraged to”.
Regarding final provisions, the EU underscored several positive changes in this new text, specifically the addition of the reference in 16(3)(e) that provides the Conference of States Parties (CoP) with the ability to decide upon and perform “other duties.” The concept of incrementalism built into article 16(3)(e), which was addressed and supported by several delegations during the July negotiations, is an important element in ensuring that implementation of the Treaty is robust and effective in the long-term.
Also significant is the continued debate on the functioning of the CoP. The Russian delegation noted that any functions listed for the CoP must be adopted by consensus and such a provision should be spelled out in a chapeau, a position also supported by Egypt. This significantly limits the ability of states parties to respond to and review future implementation challenges. The suggestion by the Russian delegation would make any chance for addressing future operational and implementation challenges extremely difficult (if not impossible). Moreover, the current article 21 specifies a number of responsibilities for the CoP including the ability to ”consider and adopt recommendations regarding the implementation and operation of this Treaty.” However, it is not specified how the CoP is to arrive at these recommendations if it is not realistically in a position to review implementation of the Treaty.
Another important revision highlighted during the day’s discussions was the deletion of article 23 from the 26 July text. The delegations of Costa Rica, the EU, Ghana, and Switzerland welcomed the deletion of this article entitled “Relationship with States not party to this Treaty”. This is a positive change in the text given that the previous article essentially provided for weaker control on certain transfers with non-state parties.
It is clear that many stark divisions remain between delegations on specifics of the text, including many more than those mentioned in this report. Nevertheless, the most important division that must be addressed is that between delegations that wish to adopt a consensus treaty at any cost and those that seek a robust treaty and will not compromise so much so that what is left does not accomplish the true object and purpose of the ATT—to prevent the human suffering and loss of human life associated with the unregulated and illicit trade in conventional arms.