Looking to the Future of the ATT and Shifting Attention to Implementation

3 Apr

After more than a decade of advocating for and working towards a robust and comprehensive arms trade treaty (ATT), relevant stakeholders can now mark a conclusion to the first step in this process. This was an imperfect process that yielded an imperfect treaty. Nevertheless, the task now is to take what has been adopted and ensure that it has the most effective impact possible on the ground so that the human suffering caused by the illicit and unregulated arms trade—the original purpose of and impetus for this process—is prevented to the greatest extent possible.

Adoption of the treaty text

Last week, delegates to the “Final Diplomatic Conference on the Arms Trade Treaty” were unable to adopt, by consensus, an ATT due to formal objections by the Democratic People’s Republic of Korea (DRPK), Iran, and Syria. But the text was brought to a vote on Tuesday, 2 April through a UN General Assembly (UNGA) resolution sponsored by more than 100 states. An overwhelming majority of UN member states voted in favor of this resolution, thus adopting the ATT text. The final tally was an overwhelming 154 states in favor, 23 abstentions, and three votes against (DPRK, Iran, and Syria).

The adoption of the ATT at the conclusion of these two weeks, even if it was a few days after the close of the Diplomatic Conference, was surely due in part to the strong leadership and good management of the President of the Conference, Ambassador Peter Woolcott of Australia. Ambassador Woolcott was able to bring forth a text that had enough support to garner easy passage quickly in the UNGA.

However, not all states were satisfied enough with the text to vote in favor of its adoption. After Tuesday’s vote, the so-called “skeptics” reiterated their well-known concerns and opposition to the text, noting substantive omissions and dissatisfaction with the process. The delegations of Belarus, Bolivia, Cuba, DPRK, Ecuador, Egypt, India, Indonesia, Iran, Nicaragua, Russia, Sudan, Syria, and Venezuela were among those that took to the floor to offer explanations of vote (EOV).

Several of these delegations continued to regret the absence of a prohibition against the transfer of arms to unauthorized non-state actors, references to the principle of self-determination of peoples under foreign occupation, an independent section dedicated to definitions, and an accountability mechanism for exporting states. These states also expressed dissatisfaction with the overall imbalance of the text in the favor of exporters and, thereby, the possibility for political manipulation. The Russian delegate reiterated his delegation’s specific concern over the language of article 6(3) related to the knowledge-based test for atrocity crimes. Moreover, the delegations of Ecuador and Pakistan warned against attempts to re-define consensus and the Egyptian and Chinese delegations warned against setting a precedent of forcing a UNGA vote in such processes. Many of these delegations also noted that they would reserve the right to re-examine the text and its possible implementation back in their capitals.

On the other hand, many states expressed robust support for future development of the ATT and its strong implementation, support that will be crucial for the ATT’s future effectiveness. A statement from a diverse group of 98 states, delivered by the delegation of Mexico, noted, “At the beginning of this process we set out to make a real difference in people’s lives. This continues to be our commitment, which we will carry out through the implementation of this Treaty.” Indeed, “making a difference” is the sincere hope of this Treaty. Thus, attention must now shift to implementation. These 98 states also reinforced their commitment to making the Treaty stronger through implementation. In addition, the original “co-authors” of the first ATT resolution in the UNGA—Argentina, Costa Rica, Finland, Japan, Kenya, and the UK—also offered a joint statement noting that adoption of the text is just “one landmark” and the responsibility to support implementation remains.

Looking back over the process

The ATT text represents a convergence, albeit a compromised one, of the majority view that the arms industry needs regulation in the form of a legally-binding instrument. Undoubtedly, the text and the process that came before it have represented the emergence of new international norms that the transfer of arms must be denied when there is serious risk of violations of international humanitarian law (IHL), international human rights law (IHRL), and when there is a likelihood that such arms would undermine peace and security. Furthermore, the undertaking of the ATT process has also underscored the need for greater transparency and accountability in the arms trade, bringing it out of the shadows and more prominently in the public domain. It is clear that the ATT writ large has been a worthy endeavor, if flawed, in attempting to consolidate the international drive towards these goals. The treaty has the potential to serve as a useful tool to continue to work towards these goals of reducing risk and increasing some levels of transparency.

Nevertheless, despite the good will of many of the stakeholders that have been dedicated to this process over the last decade, undisputed victory cannot be claimed. The text is not the ideal iteration of what an ATT could be or even the version that the group of 116 states called for in a joint statement during the second week of the Final Conference. These states called for a treaty with a comprehensive scope of items and activities, reflective of existing international legal obligations and norms, and one that enhances transparency and prohibits the transfer of arms when there is “substantial” risk of serious violations of international law, including IHL and IHRL or risk of diversion. Unfortunately, the text’s provisions do not live up to these standards nor fulfill the calls from the vast majority of the governments, international organizations, and civil society groups. This is, of course, in part due to the tremendous compromising power of consensus.

Indeed, the text that has been adopted is a product of a consensus process whereby progressive states had to compromise to keep certain states “on board” with the final product. Any process that is subject to this constraint will indubitably be forced much closer to the lowest common denominator than the highest aspirations, even if the majority of states support the latter. The ATT process has been no exception, with the concerns and interests of a few states being reflected despite opposition from most other states (in particular, the retention of “overriding risk” and the exclusion of ammunition/munitions and parts and components from the full scope of the treaty).

The question becomes: is the text that has been adopted going to, in practice, not only set norms and goals, but positively change arms transfer policy so that it will make a difference in the lives of those who suffer armed conflict and armed violence? Ultimately, the jury is still out. As many states and civil society representatives have noted, the adoption of a treaty is not a victory in-and-of-itself, but step one of a longer process. The real work of evaluating its impact will have to begin immediately. Therefore, the work of the Conference of States Parties (CSP), the national implementation of treaty obligations, and the ongoing interpretation and implementation of its provisions will be all the more important.

A final look at the text

Many significant issues remain unchanged and new ambiguities have been introduced, making the treaty much less reflective of the majority opinion of states and more reflective of minority interests. Nevertheless, positive aspects of the treaty deserve underscoring in terms of looking forward to implementation:

  • Ammunitions/munitions, parts, and components are covered by prohibitions and export assessment, and are required to be regulated by national control systems.
  • Prohibitions have been set forth that require denial of authorization of transfers if there is knowledge that such arms would be used for the commission of mass atrocity crimes, including genocide and crimes against humanity, as well as war crimes and attacks against civilians.
  • Binding criteria for export assessment include if the transfer would undermine peace and security, facilitate serious violations of IHL or IHRL, acts of terrorism, or acts relating to organized transnational crime. Moreover, the text also includes a binding criterion for preventing gender-based violence (GBV). States shall not be permitted to authorize the transfer where there is an “overriding risk” the weapons will be used to commit or facilitate GBV.
  • A detailed article on diversion lays forth measures that states parties should take in cooperating with one another in order to address diversion risks and enhance the practice of effective anti-diversion measures.
  • States parties involved in transfers must take measures to prevent diversion of items in the scope.
  • The provisions on international cooperation encourages that states parties jointly support others in investigations, prosecutions, and judicial proceedings in relation to violations of national measures pursuant to the treaty. Likewise, states parties are encouraged to provide assistance in concrete areas related to the arms trade, notably stockpile management, model legislation, and disarmament, demobilization and reintegration programmes (DDR).
  • The CSP has the ability to review implementation of the treaty, including developments in the field of conventional arm as well as to consider issues arising from the interpretation of the treaty. This thus allows, at least in a limited fashion, that the treaty can be adjusted to respond to evolving technological and security advances.
  • Amendments can be adopted, as a “last resort,” by a three-fourths majority should adoption by consensus fail.

Despite the retention of these positive provisions, some loopholes and weaknesses still remain that will continue to pose challenges in the implementation of the ATT. These weaknesses and loopholes will have to be dealt with, to the greatest extent possible, during the follow-up meetings of the CSP.

  • Ammunition/munitions and parts and components are not covered by the obligations under import, brokering, transit or trans-shipment, or reporting.
  • The “floor” of the definitions of the items in the scope is limited to the UN Register of Conventional Arms and “other relevant United Nations instruments” at the time of entry-into-force and, therefore, states can “freeze” definitions established more than two decades prior.
  • Non-commercial activities such as gifts, loans, and leases are not expressly covered under the definition of “transfer.”
  • There is no explicit prohibition against transfers that would violate human rights.
  • Inclusion of the term “overriding risk” ostensibly allows states to proceed with a transfer even if there is substantial risk of violations of IHL or IHRL if there is some other risk (political, economic, or otherwise) is noted to “override” these risks.
  • References to socio-economic development and corrupt practices were dropped from export assessment criteria.
  • When states parties become aware of new information, they are not required to revoke or suspend an authorization, but are merely “encouraged to reassess the authorization” after possible consultations with the importing state.
  • Public reporting is not mandatory and states parties can exclude any information deemed “sensitive” from a national security standpoint from reports to the Secretariat.

Moving Forward

The time for substantive improvements of the text has passed. In moving forward with the ATT process, attention must shift to implementation and interpretation in order to ensure that the robust provisions that have been adopted are implemented in the best and most consistent way, while those that are still weak are not allowed to limit the overall effectiveness of the Treaty. Indeed, this is only the beginning of evaluating the ATT’s effectiveness.

This was an imperfect process that yielded an imperfect treaty. Nevertheless, the task now is to take what has been adopted and ensure that it has the most effective impact possible on the ground so that the negative consequences of the illicit and unregulated arms trade—the original purpose of and impetus for this process—are limited to the greatest extent possible. As noted by the group of 98 states in its joint statement following adoption of the text, “The hard work starts now. We must secure the rapid entry into force of this historic Treaty and implement it as soon as possible.”

 

—Katherine Prizeman

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