11 July 2012, Vol. 5, No. 6
Editorial: Dispute settlement and transfer denials
Katherine Prizeman | Global Action to Prevent War
During Tuesday’s general debate and open main committee meeting on final provisions of an arms trade treaty (ATT), the issue of dispute settlement mechanisms was brought to the fore. This is an important issue for the treaty negotiations is to consider in order to ensure the treaty’s ultimate goals can be achieved. Despite the political sensitivity that would inevitably accompany transfer denials reached under the auspices of an ATT, a solid dispute settlement process and information exchange mechanism would provide the opportunity to address the circumstances that led to a denial and ultimately better achieve the goals of an ATT—to reduce human suffering caused by the unregulated trade in arms.
As the general debate continued on Tuesday morning, the delegation of Colombia noted the importance of including a dispute settlement mechanism as well as provisions for information exchange in the ATT. Specifically, Colombia’s delegate called for a procedure through which an exporting country, before making a final decision regarding a transfer, can inform the importing country of the decision with reasonable time to provide information “to resolve the legitimate doubts that the exporter may have.” Furthermore, the Colombian delegation suggested that the treaty incorporate an information exchange mechanism through which exporting countries notify all states involved with the details of the transit and final destination of the weapons on licenses granted and permissions denied.
There is indeed an incontestable need for transparency in implementing an ATT on the part of all member states through their national decision making authorities. However, in light of the Main Committee II session on final provisions on Tuesday afternoon, it is important to note that the issue of dispute settlement and information exchange regarding transfer denials remains a controversial one. During the third session of the PrepCom in July 2011, member states expressed concerns over requiring states parties to notify and qualify publicly their decision to deny a transfer. The positions on such a proposal have ranged from states that are against notifications in all forms to states that see merit in this practice but feel greater clarification on those responsibilities is needed.
The Chair’s paper from July 2011 proposed that each state party submit annually to the Implementation Support Unit (ISU) a report for the preceding year concerning, inter alia, “details of denied transfers and grounds for their denials, particularly highlighting cases were licensing was granted to previously denied importers.” Unfortunately, the more recent Chair’s paper from July 2012 no longer specifies that the ISU will serve as a repository for transfer denials, but rather focuses only on facilitating coordination among states parties, conducting outreach activities, and performing technical and administrative duties. Moreover, the new version of the Chair’s paper does not specify that records on denials shall be maintained. This is an unfortunate weakening of the text that, if accepted, would seriously impede the process of transparent and consistent information exchange in a clear and codified manner based on concrete treaty text.
While the decisions involving denial of transfers under an ATT will remain a national prerogative (although must be based consistently on binding, robust, and comprehensive criteria), it is essential that the notification and information exchange mechanisms of the ATT enable states parties to address denials in a consistent, transparent, and meaningful manner such that decisions to deny transfer can result in improvement of the circumstances that led to the denial in the first place.