Thursday, September 30, 2010

Unofficial Summary of the Boston Symposium

The organizers of the Symposium provided the participants with background papers for the three breakout sessions (on the issues of scope, parameters, and implementation) and the informal working lunch (on the issue of transparency) that was held on 29 September. They also submitted discussion questions that have helped to frame the debate during the sessions.

Parameters Background Paper and Discussion Questions

Implementation Background Paper and Discussion Questions

Scope Background Paper and Discussion Questions

Transparency Background Paper and Discussion Questions

Sessions on Scope

  • Having examined the limited scope of the UN Register of Conventional Arms Categories is broader inclusion of the scope of an ATT necessary? The inclusion of SALW appears to have broad agreement, but would the illustrative definition from the UN Register background information provide the best basis for the Treaty?
There was very broad agreement among the participants on the fact that the UN Register has a limited scope and is thus incomplete. The 7 categories are a good basis to start with, but there is a need to have broader coverage such as the formula 7 +1 + 1, which could be revised and updated by annual meetings of States Parties.

It was recommended that a negative definition should be included, “It is included unless it is excluded”  with specific exception such as sport guns.

One participant raised the issue of including non-kinetic-energy weapons termed "non-lethal", such as tear gas or Tasers in the list, which led to discussion on the coverage of military weapons vs law enforcement weapons. Participants generally agreed on the need to include both types of weapons into an ATT, however definitions remain to be clarified.

Are the UN ODA guidelines sufficient in defining SALW? Participants agreed that it is wise to use it as a good starting point.

  • Does the term “ammunition” or “munitions” best serve the purposes of an ATT? Is the term "munitions" too wide both for scope and reporting purposes?
Participants were not able to explain the proper differenciate between the two categories. Generally it was understood that “munitions” is a broad definition and ammunition being a sub-category. “Munitions” could be used as an umbrella. The precise distinction was, though, unclear.

  • What are the complexities of parts and components in the context of a global supply chain? What balance should be struck between control and facilitating movement while maintaining control? Is design intent i.e. “specially designed for military use” the appropriate guide in this context?
There was general agreement on the need to include parts and components. Although one participant raised the fact that it would be a burdensome excercise to issue a licence for all parts related to one type of weapon.

  • Does the Treaty require definitions for each of the types of transfer?
There was broad agreement that the term “transfer” should be refined. One participant raised the issue to take into account the entire supply chain in all its aspects.

In the context of discussions during the Open-Ended Working Group (OEWG) and the PrepCom the following activities have been identified as potentially falling into scope:

Import, Export, Re-export, Temporary Re-export, Transshipment, Transit, Brokering, Artisanal Manufacture, Technology Transfer, Manufacture under Foreign License, Leases, Loans, Gifts, Technical Assistance, Promotion and, Research, Financing, Training.

One participant suggested including “financing” in the list, since financial institutions play an important part in the supply chain.

There was discussion on whether there might be any useful WTO rules in this context.

  •  Is Foreign Licensed Production is an essential component of scope?
Foreign licenced production can be considered as an essential component of scope, but there was uncertainty in the discussion as to how it should be dealt with in an ATT. Transfer of technology should be included as well, in the view of some participants, although it was suggested that it might be already captured by an obligation to report on technology for manufacturing. When a license is granted, does a transfer occur? To whom the reporting obligation would fall? E.g. if the State X helps  State Y to build a tank, the State X would report on the export of technology and State Y would report on the transfer of the product (export).

  • Do broad headings, accompanied by illustrative Annexes provide the most effective means by which a Treaty can be negotiated, implemented and kept up to date? Should the principle of “keep it simple provide” a compass for eventual drafting and negotiation?
Participants recommended keeping it simple. A negative list could be useful, and an amendment of the treaty could be a way to expand it.

Dual-use goods might be difficulty to include in an ATT for it could be difficult to investigate all items; it would be an burdensome task to develop a list.

The question was raised whether reservations should be allowed.

There was general agreement that an ATT should not be in contradiction with other international law instruments, e.g. the UN Charter.

Sessions on Parameters

There was a general recognition that an ATT does not seek to ban transfer but to regulate and avoid illegal/irresponsible transfer. There was general agreement on the need to include international humanitarian law and international human rights law criteria.

  • Are there any criteria that should definitely be included in an ATT?
The criteria should be objective and non discriminatory and it should not include a lengthy list. Certain participants objected to the inclusion of customary international law. It was also asserted by some that the treaty should not codify new norms.

Many participants raised the issue whether there are any WTO trade law-related criteria that could be included.

According to the relevant background paper:

"States have also expressed the need to consider other factors relating to the recipient country. Without proposing any particular formulation, these considerations include:

d. whether the recipient exercises adequate national control of arms and complies with commitments in the field of non-proliferation, arms control and disarmament;
e. the risk of diversion for unintended or unauthorised uses such as those mentioned in the above criteria or users such as armed groups, non-governmental bodies acting outside the law, persons designated as 'terrorists' or criminals." (Background paper p. 3)

One participant considered the points d. and e.  as “new criteria” that had not been discussed previously.

One participant referred to Transparency International that uses a tool “the integrity pact” to safeguard the transactions.
A number of participants referred to the "subjective" approach of  human rights, although one pointed out the fact that the definitions under IHRL are very precise.

Any decisions based on IHRL/IHL should be done on a case-by-case basis in order to avoid a general prohibition. There were concerns about creating a de facto embargo on a specific country when using the parameters. Others raised the situation of how to apply the criteria when the law enforcement system of a country has a very bad human rights record, compared to an army that respects international standards.

How to define “serious violation” was one important issue raised.

A participant stressed the importance to create a baseline and then States would be free to decide on more stringent criteria.

The risk assessment was considered to be the central issue and the failure to undertake it could lead to an irresponsible transfer. What is important is a careful risk assessment; reference was made to “subjected to rigorous scrutiny” (footnote 19 of the background paper).

The threshold of risk appeared more as secondary issue. “Clear risk” is the term used in arms transfer instruments, while NGOs have preferred the term “substantial risk”, but at the end of the day it does not seem to make any major difference.
One participant underlined the difference between “shall not” or “taking into account”  (feel free to ignore) language/approach, which have different legal consequences. There was general agreement on the need to adopt a "shall not" approach.

Where to find the reliable information/sources for the risk assessment?

This refers to objective indicators based already on the existing guidelines, e.g. ICRC, practical guide that refers for example to media, diplomatic information, NGO, human rights, ICC. Some participants stated that this is already done on a daily basis at the national level, there is a great amount of State practice on criteria and threshold.

Sessions on Implementation

National level
There was general agreement on what a national system should contain. It should contain specific legislation (.e.g., national implementation unit, criminal and civil law provision, the enforcement of ATT provisions).

International level

Co-operation and assistance:
-    Facilitating implementation of the ATT for States that lacks capacity to implement it
-    It can be an incentive for adherence, promoting advantage for its membership

One of the delegates in the Symposium raised a question whether States are legally obliged to cooperate internationally.
From International Law point of view, there is a UN Charter obligation incumbent upon States to cooperate internationally "in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion". This provision is stipulated by Article 1(3) of the UN Charter and is further expanded in Chapter IX under Articles 55 and 56. It is then up to specific treaty regimes to further define and operationalize this general obligation. Within ATT discussions, this would imply that States are in a position to give a precise definition of what international cooperation would entail in relation to Arms Trade.

The reporting mechanism should be included in the instrument on import, export, licensing system, etc., with a standardized reporting format (that is simple and flexible). Some States flagged that some sensitive information might not be published (confidentiality or national security ground).

One of the main objectives is to share information and build confidence. This could be done in the form of a monitoring/consultation/verification mechanism (bilateral, regional, group of concerned countries, peer reviews). There was not a clear agreement on the exact nature of an international mechanism.

Control Arms Coalition Final Remarks to the Symposium  

A broad scope is needed in a treaty in relation to its objective and purpose. It should include not only military but also law enforcement type of weapons. The 7+1+1 approach should not be considered as a shorthand but rather as a basis to develop a broad scope.

On parameters, the Coalition warned against using a loose approach, i.e. "taking into account"  might be interpreted as "feel free to ignore".

On implementation: they supported the general agreement on the implementation at the national level for a strong export control regime. They stressed the need to set up implementation mechanisms also at the international level.

Thursday, September 23, 2010

Boston Symposium on the Arms Trade Treaty

An important international conference on the ATT is being held at the University of Massachusetts Boston on 28-30 September 2010. The ATT legal blog will be updating you on discussions and ideas that are generated. The proceedings are subject to Chatham House rules, so we will not be able to identify speakers or participants without their consent. Hopefully this anonymity will encourage some useful discussions.