Informal Draft Paper on Criteria/Parameters by the Chair of the Preparatory Committee for an ATT: Good basis for discussion or cheap hamburger?

Ambassador Moritan, the Chair of the Preparatory Committee, has circulated his informal draft papers, which are expected to serve as the basis for discussions at the Second PrepCom for an ATT, which opens on Monday 28 February. At first sight, there is much to commend the draft, which covers a broad range of activities and conventional weapons, and lays down valuable criteria for determining the legality of any proposed transfer of arms. Ultimately, however, one is left with the impression that this is really a cheap hamburger: it looks good in the photo, but when you taste it, there's actually no meat in it.

First and foremost, the paper on criteria/parameters has a critical flaw. It starts by requiring States to evaluate on a case-by-case basis the decision whether or not to authorise a transfer of arms. So far, so OK. But it then provides that: "States should, as appropriate, take into consideration [the] following criteria." This introductory phrase appears to deprive the criteria laid out in the remainder of the provision of all objective force.

First, the use of the word "should" (as opposed to "shall") already shows that this is not an absolute obligation being proposed.

Second, who determines whether or not it is appropriate? The State? Is this an absolute discretion?

Third, and most serious of all, even this light hortatory language is rendered almost meaningless by the phrase "take into consideration". This means that all of the following criteria, however unequivocally they are phrased, are only to be "taken into consideration". Even a Security Council Chapter VII decision that is binding on every UN member State? The provision as a whole only becomes meaningful if this second sentence is deleted.

The criteria proposed are generally helpful. Section A (International Obligations of a State) merely repeats, in rather weak drafting language, that a State must respect the UN Charter law and its treaty and customary international law obligations.

Section B (Potential consequences of the arms transfer on internal, regional and international peace) introduces another subjective element whereby the substantial risk of misuse preventing a transfer must be "in the view of the potential transferring State", thereby further weakening the text.

The relevant provision on IHL and IHRsL suggests that a potential violation must be both of international humanitarian law and of international human rights law, which will certainly not be the case outside of an armed conflict. The "and" should become "or".

Section C (Consideration of the illegal use of the transferred) includes, with respect to genocide or crimes against humanity, a substantial risk that they would "likely be used" whereas all other criteria refer only to a substantial risk that they would "be used".
  
Section C 3. The wording of "any other crimes of international" should be clarifiied to identify which crimes  are being referred to.
Section C 4. The phrase "Be used to perpetrate acts of terror" should be clarified to identify which entity can perpetrate acts of terror (states as well as non-state actors?) and based on which parameters.

Finally, the criteria dealing with diversion refers to "unauthorised end users" without defining whether this means any individual or entity other than the stated end user on the relevant certificate.