Final thoughts of the Second PrepCom: A firm step forward

In many ways, this was a surprisingly positive Second PrepCom. The Chair's non-paper, submitted to governments in advance of the prepcom, was quite poorly drafted in sections and contained some major potential loopholes. The revised paper Ambassador Moritan issued on Thursday (Day Four) was much more skilfully drafted (the definition(s) of transfer notwithstanding), clearer, and far more solid in its provisions. In particular, the section on criteria--the heart of the future Arms Trade Treaty--was a great improvement on its predecessor. As Adlai Stevenson once said, "All progress has resulted from people who took unpopular positions." Credit is thus due to Ambassador Moritan for his second draft paper this week.

(c) Jesper Waldersten

For no one should be under any illusions about the task ahead. The ill-fated decision to require the adoption of the treaty by consensus may yet scupper a serious agreement, at least within the auspices of the United Nations. Cuba, Egypt, Iran, and Syria, along with the Russian Federation, all seem opposed to an Arms Trade Treaty, at least in any meaningful sense. More positively, China and India appeared to demonstrate a more mature reflection on an ATT during this Second PrepCom, although both clearly still harbour significant concerns. Algeria and Brazil had little positive input into the process.

A new Chair's paper is expected for the Third PrepCom, which takes place in mid-July, again in New York. This paper is likely to set out the Chair's take on possible implementation measures, as well as revisions to his existing work on the preamble/principles, the goals and objectives of the treaty, scope, criteria, and cooperation and assistance. Look out for the details of a national regulatory mechanism, the national legislative framework sought, as well as provision for an international secretariat/clearing mechanism, presumably within the UN itself.

Given the potential future role of the UN in the implementation of the ATT (whose agencies and bodies have otherwise been eerily silent this week), our final thoughts on this PrepCom should justly go to a former UN Secretary-General, Dag Hammarskjld. He suggested that one should: "Never look down to test the ground before taking your next step. Only he who keeps his eye fixed on the far horizon will find the right road." Great and heart-warming advice ... except, perhaps, when you're entering a minefield...

Fifth and final day of the Second PrepCom - Consultations on the revised Chair's Paper

Overview of the day's discussions

Discussions continued during the final day of the Second PrepCom on the elements and text included in the revised "Chairman's Draft Paper" issued on Thursday. Delegations varied between support and criticism of the Chair's latest draft proposals.

(c) Jesper Waldersten

Delegations' statements

Hungary (on behalf of the EU) supports the incremental improvement of the draft paper. The EU does not consider it appropriate to include provisions on victim assistance, since the ATT "is not a disarmament treaty".

Denmark reiterated its objections to including transportation in the definition of transfer as it is difficult to implement within a licensing system. Sport and hunting weapons should be included, although the reporting measures could depend on the amount/type of weapons transferred (reference was made to the UN Firearms Protocol which foresees the adoption of simplified measures on reporting/licensing.

Algeria suggested deleting any reference to international humanitarian law and human rights law in the criteria section, since this can be "easily politicized" and noted that in any case these issues are covered in the objectives section.

Costa Rica stresses the importance of transparent reporting procedures. As to definition of transfer in Annex A. They suggested to add “or”. This reads as “title to and/[or] control over the equipment”

Norway suggested including a reference to armed violence and not only on armed conflict in paragraph 9 of the Principles section. They also suggested adding a reference to the UNSC resolution on women, peace and security (i.e. Resolution 1820, as well as Resolution 1828 on sexual violence)

Japan suggests that it will not be possible to regulate all the types of transfer, therefore there is a need to redraft the provision on transfer.

Iran called for the need to have an independent section on Principles in addition to the preamble. On paragraph 19 (Recognizing that States may adopt more restrictive measures than those provided in the ATT), they suggested that the provision may be equivalent to a unilateral coercive measures.

Lichtenstein recalled that the three pillars of the UN include human rights and development and noted that these are goals in themselves and should not be dependent on security issues (see Goals and Objectives paragraph 4).

Switzerland referred to ambiguities on transfer (Section 2 of the Scope). They felt there was no specific need to include manufacture under foreign license as a separate item. They proposed new wording to define transfer:

"Section II: International transactions covered by this Treaty include those listed below:
    
a. Export (includes re-export and temporary export)
b. Transit (includes transshipment)
c. Import (includes temporary import)
d. Transfer of title or control over conventional arms from the jurisdiction of one State to another
e. Transfer, by tangible or intangible means, of information which is required for the design, development, production, manufacture, assembly operation, repair, testing, maintenance or modification of conventional arms (Transfer of Technology).
f. Activities of negotiating or arranging contracts, selling or trading of conventional arms from a third country (Brokering)."

Mexico (on behalf of several American States) proposed the inclusion of diversion in the criteria section (5 F). On paragraph 9 (Principles), they suggests adding a reference to armed violence on this paragraph as well as in the section on goals and objectives. On criteria, they called for only “gross and systematic violations” of human rights to be covered (B3) and argued for the inclusion of a reference to international criminal law (B4).

New Zealand suggested changing the word “restrictive” in para 19 of Principles, in order to avoid any confusion on the legitimate right of a State to go beyond its own international legal obligations.   

Day 4 of the Second PrepCom - Consultations on a revised Chair's Paper

Overview of the day's discussions

(c) Jesper Waldersten

The Chair circulated a new "Chairman's Draft Paper" and presented orally the changes that he had made. In general, the paper represents a significant improvement on the previous draft, most notably by clarifying that in reaching a decision whether or not to authorise any given transfer States Parties "shall apply" the criteria set out in the text. Previously, the drafting language had suggested that States were only being given guidelines that they could choose whether or not to apply in their decision-making.

 

The paper retains both "small arms" and light weapons" as well as "ammunition" as categories covered by the treaty. Parts and components and technology and equipment are, though, covered only if they are "specifically and exclusively designed" for weapons covered by the treaty. This means so-called "dual-use" items would not be encompassed by the treaty. There does not appear to be a mechanism to include new weapons or other categories of weapons that are not yet encompassed by those set out in the section on scope.

 

Disappointingly, the definition of "transfer", which is clearly central to the future treaty, retains the ambiguity inherent to similar definitions in the Convention on Certain Conventional Weapons, the Anti-Personnel Mine Ban Convention, and the Convention on Cluster Munitions.

"International arms transfers involve, in addition to the physical movement of equipment into or from national territory, the transfer of title to and control over the equipment."

 

Thus, it is not clear whether physical movement of weapons and the transfer of title must both occur before a transfer is deemed to have taken place. This potentially leaves a major loophole, since a State may undertake the two activities separately (e.g. first move the mines and only later transfer title) and thereby circumvent the obligations laid down in the treaty. Such an interpretation would also not cover the transit of weapons through a State Party, despite its specific reference in the list of activities covered.

 

Delegations' statements in response to the Chair's new paper

USA stated that there are also responsibilities upon recipient States, not only on exporting States. National implementation by recipient States are therefore also critical. The USA is not convinced that reporting under the treaty should cover all weapons encompassed by the treaty. It stated that the treaty is not a replacement for the UN Programme of Action on Small Arms and Light Weapons (SALW). On ammunition, the USA does not believe that this should be covered by the treaty. It claimed that the object and purpose of the treaty was to set minimum standards for the legitimate trade in arms and not to prevent death. Thus, illicit transfers should not be encompassed as they are already illegal. "Less may be more", and "The better may be the enemy of the good." The US wants the treaty to be "very discriminatory", i.e. to discriminate against the "rogues" who proliferate weapons irresponsibly.

Mexico stated that in the section on goals and objectives they wanted the issue of diversion to be specifically included. On scope, Mexico wondered why military explosives had been excluded. This was a particular concern for Mexico. Mexico also wondered whether electromagnetic arms would be covered. Mexico also asked whether the two elements in transfer were alternatives or cumulative. It suggested an alternative drafting intended to clarify them as alternatives (although their proposal seemed to the bloggers to maintain the ambiguity in the existing definition, using "as well as" instead of "or", which would effectively clarify the issue).

Japan stated that sporting and hunting weapons for recreational purposes should be explicitly excluded from the scope. On the definition of "transfer", it felt that some States would have problems in regulating a transfer of title where no physical movement of arms took place. They appreciated the clarification of the chapeau on criteria.

Hungary (on behalf of the EU) stated that the document had put the discussions "on a good path".

Iran set out its views on the elements to be included "in an eventual ATT". Main objective of the treaty should be to prevent illicit trade in conventional arms. The section on principles is the most important for developing countries. They wanted to see the "sovereign" right of States to acquire and maintain arms reflected in this section, and the right to self-determination of peoples under colonial domination or foreign occupation. Only wanted to see UN register weapons covered, except missiles. They are "flexible" on the issue of transit. Wanted precise and non-discriminatory criteria. Wanted possibility to amend the treaty by consensus. Wanted 100 ratifications, including 15 major arms-producing States, for entry into force. Accepted five-year review conferences. They wanted the establishment of a "denials committee". Finally, they wanted a rolling text with the proposals of all States.

Pakistan stated that arms control was central to the proposed treaty and called for language in this sense to be included in the principles section.

Ecuador restated its objection to the criteria of poverty reduction and impact on socio-economic development in a recipient State.

Cuba said that positions between States remained very divergent. Many elements in the Chair's paper were unacceptable to Cuba. The scope was excessively ambitious. Transfer of technology and equipment should not be covered by the treaty. Many criteria were not objective. In contrast, there was no prohibition on transfers to non-State actors, which Cuba wished to see.

Switzerland stated that it was not clear whether hand-grenades are covered by the proposed scope. It supported Mexico's views on the definition of transfer.

Sweden stated that the list on scope needed to be "right". Sweden felt that military explosives are actually a component and would therefore be covered. In contrast, the deletion of "munitions" meant that bombs, mines, and grenades were not explicitly covered. On criteria, they were pleased to see the risk of corruption covered, but wanted it also to be broader, not merely with respect to diversion but also market competition. On  C&A, they were surprised to see the phrase "industrial cooperation related to the treaty and its practical implementation" included.

Australia stated that transparency and accountability were important elements in the treaty. They wanted to see references to the impact of conflict and armed violence.

Norway stated its support for the revised chapeau on criteria. They wanted military explosives explicitly covered. They wanted transfer used as a generic term and said it should not be given an additional separate definition. Norway was concerned about the language used on victim assistance.

Nigeria stated its support for a dedicated secretariat to facilitate national implementation and international C&A.

UK stated that good progress had been made during the Prepcom.

Uruguay stated that the list of weapons in scope should not be exhaustive as it should cover new weapons. It proposed that the section on scope cover "future developments of conventional arms". It also wanted the issue of "abandonment" of weapons following a peace-keeping mission to be explicitly covered by the treaty.

New Zealand stated that the language on self-determination needed to be in compliance with existing international law. The reference to transfer and then also to import and export was not helpful. They completely disagreed with Iran's call for 100 States to ratify prior to entry into force of the treaty.

Poland stated that transfer should include technology transfer.

Germany stated that transfer should be defined as physical contrrol of weapons and not necessarily transfer of title.

France stated that reference to universally accepted definitions might be needed. They wanted evaluations of transfers to be done on a case-by-case basis. They wanted the reference to corruption to be strengthened. On C&A, on the issue of VA France was not convinced that it should be included in the treaty.

NGO presentations

The afternoon of Day Four began with presentations by NGOs.

IANSA made particular mention of the need to prevent the supply of weapons for use in gender-based violence. It also called for provision for gender-, age-, and culture-specific victim assistance to be included in the treaty.

Roy Isbister of Saferworld stated that all weapons, munitions, and ammunition supplied for armed forces and law enforcement should be covered under the treaty. This, he said, is what most major arms-exporting States already do. He gave the example of language used by the Security Council in the recent decision on Libya. He was pleased to see ammunition covered in the Chair's latest non-paper, as well as small arms and light weapons, and parts and components specifically designed for use in weapons.

Mr Isbister would like to see explosives, laser weapons, communications, night vision, robotic, and counter-measure equipment also covered by the scope of the treaty. He further called for internal security and law enforcement equipment to be covered by the ATT. He said that the annex was an elegant approach to retaining flexibility to enable the treaty to cover new weapons.

Amnesty International (Morocco) stated that the arms embargo on Libya was late but nonetheless welcome.

Anna Macdonald from Oxfam called on States to show greater transparency in military budgets. She applauded the criteria relating to the potential impact of an arms transfer on socio-economic development. She stated that corruption was a major driver in diversion, and called for stronger inclusion of the criteria on corruption in the treaty.

A second representative of IANSA stated that 490,000 out of 740,000 deaths from armed violence each year took place in situations other than armed conflict. He repeated the importance of criteria relating to homicides and gender-based violence. He called for verification that end-user certificates translated into reality. He also repeated the call for victim assistance to be covered by the treaty.

The Defence Small Arms Advisory Council stated that the only opportunity for industry to input into the treaty was short prepared statements such as this one, which was not conducive to its acceptance.

The World Forum on the Future of Sports Shooting Activities stated that the ATT should "by definition" only cover military firearms and fully automatic weapons and should cover government not civilian transfers. He claimed that the inclusion of small arms ammunition was unworkable. It was not possible to mark and trace small arms ammunition.

Delegations' statements in response to the Chair's new paper

Brazil stated that the ATT should not cover dual-use goods and were dubious about the inclusion of parts and components. They were not clear whether sporting weapons are covered or not under SALW. They also believed that the criterion on socio-economic development constituted intervention in the internal affairs of a State. They also stated that the information provided by a potential recipient State should be taken into consideration in the assessment made by the potential transferring State.

Colombia wishes tostress that arms should not be diverted to NSAGs. They also had a problem with the different criteria, except the one dealing with Security Council embargos. It further stated that the treaty must lay down similar rules for buyers and sellers.

Egypt believes that the new proposal submitted by the Chair is too ambitious and regrets that their views seemed not to have been taken into account. They made particular reference to the inclusion of SALW and ammunition in the proposed scope of the treaty. They also recalled their view that developing countries need incentives to adhere to the treaty. Hence there should be the inclusion of a provision that if the criteria are met, there should be an right to receive weapons.

Italy agreed with a positive listing of weapons. They are of the opinion that sporting and hunting weapons should not be included in the scope of the treaty.

Malawi is in favour of including SALW and ammunition in the scope of the treaty. The protection of civilians in armed conflicts from illegal acts committed both by State and non-State actors must be referred to in the preamble.

Japan states that if transfers cover a broad definition of activities (see annex) then it would be too complicated to assess "all" transfers according to the criteria set out in the paper (e.g. for transport, transfer of titles, etc). They would like that transfers should be assessed according to what the national system of the transferring State can effectively regulate.

Israel repeated its question as to the status of the annex and to what extent it can be easily amended.

India stated that it is important that the views of all States be taken into account to reach universal participation. Regarding the principles, they stressed the rights and obligations of both exporters and importers. They again stressed that the terms used in the scope differ from those used in the Register. They wanted clarification with regard to manufacturing of arms and the ATT. They also want to include a provision prohibiting transfers to NSAGs.

Trinidad and Tobago stated that an ATT should also foresee changes and development in weapons. They are keen to have attention being paid to corruption.
Indonesia stated that the criteria on IHL and IHRL should only cover "serious and systematic" violations. It also believed that the reference to international law was too broad in the criteria. They also believed that the criterion on socio-economic development constituted intervention in the internal affairs of a State.

Tanzania wants an provision on follow-up mechanisms to address the issue of non-compliance.

Zimbabwe stated that they want a provision addressing the risk of diversion to illegal end-users, in particular NSAGs.

Peru stated that a provision on the addition of new weapons in the scope should be envisaged, maybe though the recommendations made by a committee of experts. The regulation of transfers to illegal end-users, in particular NSAGs, needs to be strengthened. Scope in their view should encompass ammunitions. Decisions made in relation to transfer of arms should also be assessed with regard to the information provided by importing States.

Day 3 of the Second PrepCom - Cooperation and Assistance

(c) Jesper Waldersten

Overview of the day's discussions

Many delegations stressed the critical role that international cooperation and assistance would play in the implementation of the future treaty. There was a surprisingly high level of support for the establishment of a secretariat, perhaps located within the UN, to facilitate treaty implementation. In contrast, relatively few delegations supported the inclusion of a provision on victim assistance in the treaty.

A wide-ranging discussion in the afternoon raised a number of points on different aspects of the treaty. The Chair announced that a new Chair's non-paper would be issued on Day 4 of this PrepCom.

Delegations' statements

Australia strongly supports the humanitarian objective of ATT of reducing armed conflict and violence. Cooperation and assistance (C&A) is a key element in the treaty, in accordance with the Paris and Accra Declarations on Aid Effectiveness. Will provide amended language to the Chair (e.g. in certain cases, changing "shall" to "may" or "accepts to"). It called for a gender perspective to C&A. It supports an amended victim assistance provision, which focuses on national planning and service delivery.

Antigua and Barbuda (on behalf of CARICOM) stated that C&A is an integral part of the treaty: financial, technical and legal assistance and sharing of best practice. ATT implementation will require training of personnel and acquisition of sophisticated equipment. Also need assistance in the legal aspects of the treaty and its domestic implementation.

Hungary (on behalf of the EU) said that the EU takes C&A very seriously, and has already been supporting such efforts (e.g. through UNIDIR project). ATT should include C&A measures in it. Supports "gist" of Chair's proposals. All C&A activities should be provided on a voluntary basis. If a UN structure is set up under the treaty, this entity could facilitate C&A. On victim assistance, EU feels that it is not appropriate to include specific provisions on this issue in the treaty.

Papua New Guinea (on behalf of the 11 Pacific Island States) stated that States "in a position to do so" could assist the Pacific Island States in implementing the treaty, especially in domestic enforcement of the treaty's provisions. It encouraged best practice to be followed in determining treaty reporting obligations.

Algeria stated that it endorsed the majority of the Chair's provisions. It also wanted to see national capacity building to ensure effective treaty implementation. It felt that victim assistance provisions should be deleted as this fell under national obligations.

Egypt stated it was not clear whether C&A was focusing just on implementation or also on advocacy for adherence. It was complicated to discuss these issues without agreeing on the objectives of the treaty. It wanted, though, stronger language, requiring the provision of assistance and to see the treaty focus on treaty members. It felt that straying into "gender discussions" was "extremely unhelpful". On victim assistance, it wanted to see some measure of responsibility for those providing arms that were then used for abuse.

USA stated that the ATT is a treaty to regulate the legitimate trade in arms, not an arms control agreement. Implementing it will require a robust national review of proposed transfers. This is expensive and requires considerable effort. Therefore, C&A will be needed for certain States. Also support a "clearing house" for requests. Do not support language giving a "right" to receive assistance as it might imply a corresponding duty to provide it. The concept of victim assistance "has no place in this treaty" and recommend deletion.

Norway welcomed the Chair's proposals. It stated that this is not an ordinary trade agreement because of the nature of arms. A humanitarian approach was needed for a treaty whose aim is to prevent the illicit or irresponsible trade in arms that results in armed violence and human suffering.  Norway is convinced that the treaty should include VA provisions, although it was not suggesting that new obligations should be created. The value of the ATT would be ultimately to reduce armed violence and human suffering. Norway supported Australian call for gender perspective to C&A.

Trinidad and Tobago stated that it was imperative that consultation took place between States Parties to facilitate implementation combined with a comprehensive framework for C&A. Called for dedicated secretariat to support treaty implementation.

Japan said that effective national import and export mechanisms was critical to ATT implementation, and therefore certain States would need C&A to meet their obligations. Most important part of C&A was national capacity building for national control systems and enforcement agencies. Not convinced that VA should be in the treaty.

Singapore stated that technical assistance should be provided by States in a position to do so and on a voluntary basis.

Switzerland stated that there was some overlap and ambiguity in the Chair's draft. It proposed specific language on C&A.

UK stated that C&A was essential for treaty implementation. It also felt there was overlap between several paragraphs and suggested text to merge paragraphs 2 to 4 of the Chair's draft. Supported  Australia's view that assistance should take account of the impact of armed violence on women.

India stated that broader provisions should be included on C&A. It did not believe that VA provisions were appropriate to the treaty.

Indonesia stated that comprehensive C&A provisions were needed in the treaty. It also felt that insufficient time was allocated to discussion of these issues in the PrepCom.

Iran stated that C&A can play a decisive role in encouraging treaty adherence and implementation, especially among developing States. Support establishment of a "committee" to facilitate treaty implementation.

The Netherlands stated that many C&A activities have already been undertaken in analogous fields.

France stated that Chair's proposals were an excellent basis for discussion. It wanted to see more included on efforts to combat the illicit trade in arms. This required penal cooperation at domestic level. On VA, France felt it was not appropriate to include such provisions in a treaty regulating the trade in arms.

China stated its support for C&A provisions in the treaty. International C&A should be provided on a voluntary basis and should not be imposed on recipient countries.

Israel stated that C&A should be provided on a voluntary basis. Assistance should focus on capacity building for legal and control frameworks. VA should not be included in the treaty.

Nigeria stated its support for the Chair's proposals and endorsed Norway's views on the provisions. It wanted to see VA provisions in the treaty.

Tanzania stated that C&A would give the ATT a positive human face. Wanted the word "shall" to remain in the draft.

Brazil stressed the capacity-building aspect of industrial cooperation.

The Philippines stated its support for the Chair's proposals.

New Zealand supported a greater emphasis on capacity building and mutual legal support. Also supported a secretariat to facilitate treaty implementation. Supported Papua New Guinea's views on treaty reporting.

Argentina stated that VA should not be included in the ATT.

********************************************************

The day continued with informal consultations on the treaty.

Japan (on transaction activities) suggested for practical reasons to focus on the regulation of physical movement of arms, instead of controlling titles. They also supported the UK's proposed amendments to the introductory sentence (chapeau) for the criteria, calling for the replacement of the text with “State shall apply the following criteria.”

Malaysia prefers the language of the UN register. On parameters: risk transfer analysis can be highly political, and suggested that Article II be redrafted.

Canada referred to the common international standard, which would serve as a floor and not a ceiling, but which should not mean a low standard (“upper level loft”). On dual-use technology, there was a need for clarification in order to avoid impediments to economic developments as an unintended consequence.

Burundi (on behalf on the Community of East African States) strongly support the inclusion of SALW; and C&A.

Spain stated that there should not be distinction between munition and ammunition. The scope must be broad, but there is no need to have a section on exceptions. In relation to violence against women, Spain stated that such an issue is consistent with the mandate to negotiate an ATT; reference was made to the UNSC 1325 (2000), on Women.

The Netherlands stated the need to expand the criteria of the UN register. Technical assistance and technology transfer need to be covered; this would foster cooperation of defence industries. In Annex A, they suggested to add troop transport on military aircraft.

Nigeria (on behalf of ECOWAS) stressed the need to include explosives, munitions/ammunitions and SALW. On criteria - Article I - they suggest to replace the word “should” with “shall”. On Article I A.2, they suggest to replace the word “should” with “shall”. They strongly support the provision on sustainable development (I B.3).

Zambia supports a strong provision on C&A.

The Chair acknowledged the difficulties for the delegations to work in abstract, which does not conduce to a full understanding of the topic. He stressed the importance of the interrelationship of the different elements of an ATT, which are intrinsically linked with the implementation and the applicability of many concepts exchanged. He then announced the production of a new paper for Thursday, which is meant to be thought-provoking. The structure of the paper will take the following form:

1) Scheme (a model identifying the elements)

2) Principles

3) Objectives

4) Scope

5) Criteria

6) International cooperation and assistance

Day 2 of the Second PrepCom - Criteria/Parameters

Overview of the day's discussions

On Day Two very broad differences were evident between the majority of delegations and a significant minority during the discussion on criteria/parameters (i.e. the basis on which a State must or should deny a request for an arms transfer from another State). 

(c) Jesper Waldersten

Many delegations supported Ambassador Moritan's paper as a basis for discussion. Several States (e.g. Canada, the Netherlands, Norway, Senegal, Switzerland, UK) as well as the ICRC did, though, point out the potentially fatal drafting flaws in the chapeau paragraph that introduced the various criteria in his "non-paper". They called for the deletion or strengthening of the offending text, which called only on States to "take into consideration, as appropriate" the criteria set out in the rest of the proposal. This could imply that the criteria were not legally binding. (For an analysis of the Chair's draft on Criteria/Parameters, see the following post on this blog: Informal Draft Paper on Criteria/Parameters by the Chair of the Preparatory Committee for an ATT.)

In contrast, Cuba, Egypt, Pakistan and the Russian Federation sought deletion of criteria relating to international human rights and humanitarian law, to development, and to corruption on the basis that such criteria are subjective. These States clearly remain to be persuaded of the merits of an ATT.

Many States called for a prohibition on transfers to non-State armed groups (NSAGs), including Brazil, Burkina Faso, Côte d'Ivoire, India, Iran, and the Russian Federation.

Delegations' statements

Iran stressed the need for a realistic approach to the ATT. It was only in favour of the inclusion of the 7 categories under the UN register. It further called for missiles not to be covered by the ATT while proposing adding a new category of electromagnetic weapons (some of these weapons can be used to destroy incoming missiles). 

Hungary (on behalf of the EU) noted that the introductory paragraph needed stronger language. It supported many of the criteria included in the Chair's paper, notably compliance with UNSC decisions on arms embargoes/IHL, and International Human Rights Law, intra-State conflict, and the risk of corruption. It stated that lack of compliance with any criteria should result in the automatic denial of the proposed transfer.

Bangladesh claimed that Article 51 of the UN Charter provided a legal basis for a right to the acquisition of arms. However, it also called for a broad range of transactions and weapons to be covered by the treaty, and noted that capacity-building needs, cross-border monitoring and treaty implementation all needed to be included in the treaty. It called for a prohibition on handing over weapons to non-State armed groups (NSAGs).

Brazil also called for no "unauthorised" internal transfers to NSAGs. It also called for strengthening of the criteria, claiming that the proposals on development and corruption were too vague.

Liechtenstein supported the inclusive approach adopted by the Chair, while noting that no single delegation had a right to a veto.

Burkina Faso stated that any proposed transfers that fell foul of the criteria should be denied.

UK stated that the eight criteria as a basis for the risk assessment are a good basis for discussion. They proposed amendments to the introductory sentence for the criteria, calling for the replacement of the text with “State shall apply the following criteria”.

Ecuador also suggested that the criteria should include the violation of territorial integrity. It was concerned that certain criteria were too subjective, especially those relating to development, which it thought should be deleted.

China stated that the criteria used must be objective, pragmatic, balanced, and practical, and claimed that the criteria of transfer fell within the prerogative of States. On the issue of human rights and IHL, China stated that different States had adhered to different treaties. [Bloggers note: This is of course true, but customary IHL and IHRL, such as the right to life and to freedom from torture and cruel, inhuman or degrading treatment or punishment apply to all States, irrespective of their treaty obligations.] On the proposed criteria of development and corruption, China felt that these criteria should be deleted. Finally, it called for a prohibition on export to NSAGs.

Côte d'Ivoire made a long statement, accusing at least two States of supplying weapons in violation of an arms embargo. It warned of the problems of transfers to NSAGs. 

Norway supported the UK's statement on the chapeau paragraph. It stated that the ATT would be a complex instrument. 

Switzerland called for the deletion of the second sentence of the chapeau paragraph. Switzerland suggested that the criterion on corruption might be redrafted in a way to actually linking the issue to the transfer of arms.

Sweden made an interesting intervention on the possible obligations under the treaty for States importing weapons or through which weapons transited, suggesting that different criteria would be needed.

Singapore stated that universality would be needed for an effective ATT. It said that the standards laid down should be comprehensive, objective, and should command consensus.

Egypt said that the ATT should apply to all States, not just those exporting. It felt that many of the criteria proposed were subjective and should be deleted, notably the references to IHL and IHRL, development, corruption, and organised crime. It even suggested a new provision whereby when a State met the remaining criteria, there should be an obligation to transfer "on favourable conditions", and "without delay".

The Netherlands supported other delegations calling for the chapeau to be strengthened. It stated that in no way should an ATT be considered to lead to an obligation to supply.

Russia called for the treaty not to be "politicised". It must be universal, and with clear wording, and the provisions must be practically implementable. It called for only criteria that can be interpreted objectively to be included.

Canada supported other delegations calling for the chapeau to be strengthened. It stated that although Canada believed in equality, "not all criteria are created equal". It suggested that certain criteria could be more hortatory (e.g. relating to development and corruption).

Mexico stated that the ATT should not be limited to exporter's obligations. It should provide for a dialogue between exporting and importing States. It called for criteria relating to IHL and IHRL to be dealt with separately.

Nigeria (on behalf of the African group) stated that the UN Register is not comprehensive enough for the ATT. It supported the 7+1+1 approach. Among the important issues to be covered by a future treaty, were victim assistance, respect for IHL and IHRL and the impact of the arms trade on the socio-economic situation of the recipient country. Nigeria also insisted that the ECOWAS convention was a good model for the ATT.

Austria stressed the need to deal with corruption within the framework of the ATT to ensure an effective control of the arms trade.

Cuba stressed that the parameters for the future treaty must respect the right to self-defence, be non-discriminatory and objective. It believed that the references to arms embargoes was redundant since they are already obligations upon States. Cuba did not want any references to IHL, IHRL, or development as criteria. Cuba also believes that corruption is too vague as a parameter.

Liberia referred to States in Africa using arms to oppress their own people.

Spain does not support the proposed deletion of criteria relating to IHL, IHRL, or development. It also supported the deletion of “as appropriate” in the chapeau.

Thailand stated that human rights can be highly politicized unless there is a clear link between human rights and a proposed arms transfer.

Burundi supports the inclusion of SALW in the scope of the treaty. 

Finland stated that the criteria proposed are similar to those used in their national practice. The following criteria merit highlighting: compliance with the State's international obligations in assessing transfers; compliance with IHL and IHRL; and risk of diversion. It welcomed the criterion dealing with corruption.

USA stated that the ATT should be considered as a floor and not a ceiling. Additional factors can be taken into account based on the state decision-making. The list of criteria/parameters is partly dependent on scope and national implementation. The chapeau of the paper should be modified. The US delegation was not supportive of language on development and corruption. Section II on sources of information to assess situations before transfers, should be deleted.

India stated that the parameters should be objective, non-discriminatory, and predictable. Transfers to NSAGs should be prohibited. Criteria on development should be based on assessment made by UN bodies and be made objective and predictable. 

Uruguay referred to the value of looking at, for example, the Cartagena Protocol on Biosafety, which is a binding instrument addressing the transport of certain hazardous material.

Algeria stated it endorsed all human rights instruments but does not adopt the approach of regulating the trade of arms though IHRL.

Pakistan are of the opinion that the objectives of the ATT must be settled before working on the criteria. In any case, they want a treaty which is based on objective parameters.

Russia reminds that vague criteria cannot be truly effective. There should be measures to ensure that the flow of arms that goes to illegal armed groups and organized crimes committing  violations of human rights, be controlled and national control systems to regulate arms flow must then be strengthened. In Russia, for example, any illegal arms activity are severely punished by national criminal law.

France noted that states seem to have two visions of the goals of an ATT. For certain states, the ATT should focus on the regulation of the illicit trade, for others, the ATT should deal with the issue of the international trade of weapons in a broad way. France wants a treaty that seeks to regulate legal as well as illegal trade. With regards to the text distributed by the Chair, this would not be the case now. For example, looking at the corruption provision, it can be thought either as a parameter for trade (assess the substantial risk of corruption before transfer), or it could be considered as a crime that should be dealt with along the lines of the relevant treaties on the issue.

Senegal called for the chapeau language to be strengthened.

Syria stated that an ATT should be based on the principles set out in the UN Charter. It should be free from politicisation and double standards, and therefore be non-discriminatory. Syria wanted to remove reference to human rights and IHL.

Iran made similar suggestions to Syria and called for a prohibition on arms transfers to terrorist groups.

ICRC called for the chapeau language to be strengthened and noted that it has published a guide on applying IHL criteria to a proposed arms transfer.

Day 1 of the Second PrepCom - Scope

Overview of the day's discussions

The first day of the Second Prepcom was devoted to discussion on the scope of the future treaty based on the Chair's proposals, which is not intended as legal drafting or actual treaty provisions.

The detailed discussion demonstrates that most governments wish to move swiftly beyond general statements in the preparatory work on the treaty. Only the Russian Federation  and Pakistan seemed to question whether an ATT was needed, although many delegations stressed that consensus has to be the basis for agreement.

Many countries (in particular from the Arab Group, but also China and Iran) reaffirmed the principles of the UN Charter as a background for the ATT (right to self-defense, the principle of non-intervention, territorial integrity, self-determination).

An overwhelming number of countries were in favor of the so-called 7+1+1 coverage (i.e. the seven categories of conventional weapons on the UN Arms Register plus small arms and light weapons (SALW) plus ammunition). Some countries still oppose this, notably Egypt, while China stated that it was already covered in other fora such as the platform of action within the UN or the UN Firearms Protocol. The issue of ammunition provoked considerable discussion, with a few States claiming that the quantities of ammunition would make it difficult to include in the treaty. A good number of delegations were also in favor of the inclusion of the parts and components in the ATT to avoid the risk of its provisions being easily circumvented.

Many delegations noted that the definitions and wording of the list of weapons that should be covered differed from the language used in the UN Register. As the Register was agreed language, some delegations (China, for example) stressed that it should be the one used to avoid further conflicts.

Different wording was in particular chosen for the definition of the weapons in the Annex A. Some delegations stressed that in some cases, the ‘new’ definitions of weapons as proposed in the annex could even mean other weapon than those listed in the core text.

There was also brief discussion of the legal status of annexes in treaty law. Many delegations believe that annexes give greater flexibility than would the inclusion of weapons and their definitions in the body of the treaty to update the treaty. Further research on the legal status of annexes in treaty law is therefore needed.

Another interesting debate concerned the "calibre" of weapons, as some delegations noted that the specification of a specific calibre for weapons (regarding tanks, for example) could unduly limit the scope of the treaty.

There was also discussion on the structuring of the text on weapons to be covered by the treaty. One delegation proposed that the ATT should stick to a strict "positive" listing, i.e. listing those weapons that should be covered and not listing those excluded. Others preferred an "it's all in unless it's excluded" approach. With regard to the exceptions, some countries noted that the issue of national transfer and domestic ownership should be mentioned in the preamble and not be included a exclusion in a specific provision.

Two other proposed exceptions (sporting/hunting rifles and antique weapons) also led to debate. Mexico emphasised that sporting rifles imported from abroad were extensively used by criminal gangs in their country and in others after having been technically modified. On antique weapons, issues of definition were raised. One delegation (Iraq) recalled that in the Firearms Protocol a weapon was considered antique if manufactured before 1927.

On the list of activities, many delegations noted that the list could be simplified. The definition of brokering should also be simplified. Many delegations were not in favor of including technical assistance, R&D, and financing in the scope of activities covered by the treaty. For many developing countries, including those activities might mean that obstacles were being placed on development.

The need to include military explosives was cited by Norway, among others, and several interventions referred to  the issue of "post-transfer" (follow up of exports, tracing of exports). Finally, several delegations stated that the transfer of arms for their own military troops abroad should not be covered by an ATT.

Delegations' statements

Costa Rica made a general statement about the objectives of an ATT and its fundamental elements, reaffirming States' responsibilities under the UN Charter and the substantial risk that arms may used be commit or to facilitate violations of international human rights law, international humanitarian law or other international obligations. The minimum requirement to eliminate the gaps in international law. Costa Rica supports the 7 + 1 + 1 formula.

CARICOM stated that the 7+1+ 1 formula is the only way for a comprehensive ATT. Reference was made to data and figures relating to the Geneva Declaration on armed violence and development.

Bahrein (on behalf of the Arab Group) called for the treaty not to politicize human rights through interference with the internal affairs of States.

Hungary on behalf of the EU stated that an ATT could also include in its scope military explosives, specifically designed or modified for military purposes, provided that they are clearly defined. Parts and components, specially designed or modified for military use, of all items included in the scope of an ATT should also be covered. It proposed to redraft para II (l), so that the notion of "parts and components" applies to all categories of the scope of an ATT, including category on technology and equipment. This category could include electronics, computers, telecommunications, information security, sensors and lasers, transportation and training devices that are specially designed or modified for military use.

The EU also stated that definition of brokering should be simplified. Finally, R&D and financing should not be included in the scope. The EU is not convinced about the appropriateness of having a specific section devoted to exclusions. Any item or activity not explicitly mentioned in the positive definition of scope should not be covered by the treaty.

Egypt preferred to limit the scope to the seven categories, since SALW are covered in the UN programme of action. Concerning munition/ammunition, Egypt claimed that there was no consensus on their definitions. Egypt did not wish to see "parts and equipments" fall within the mandate of the negotiations (reference was made to dual-use parts, and the impact of their control for civilian industries).

UK stated that since time is pressing and the issues are complex, there is a need to go beyond general statements, because "the negotiation has started". Since the first PrepCom (July 2010), the world is facing continuing new security challenges (economic, piracy, insurgency) and States have responsibilities to take collective action. It claimed that an "ATT can increase confidence in today uncertain world".

India stated that the issues of scope, parameters and implementation are linked and mutually interdependent and need to be evaluated together. India was concerned that the list of conventional weapons in Annex A (a. to g.) does not reflect the one in the UN register. Such a proposed list needs further technical expertise. India proposed a more pragmatic approach, which would be to use the language used in the UN register. Technical assistance and technology, which are hard to define, should not be include in the scope of an ATT and may lead to discriminatory practices.

Indonesia stated that with regard to the parameters of the ATT, embargoes by regional organizations should not apply to other States. It referred to the principle of territorial integrity and the right of States to acquire conventional arms. The draft should endeavour to cover protection of democratic States against separatist movements. Indonesia supports the 7 + 1 + 1 formula.

Tanzania stated the importance of international and cooperation to victims.

Norway declared that the goal of an ATT is humanitarian, and should therefore include all categories of arms and weapons.

Japan declared that the wording "shall include" does not preclude States from adding other categories. It supports the 7 + 1 + 1 formula.

Cuba stated that an ATT must be aimed at preventing the illicit trafficking and should not be discriminatory and selective. It referred to the UN Charter principles (non-interference in domestic affairs, sovereignty, territorial integrity and legitimate self-defense).

Brazil supports the 7+1+1 formula. It is against the inclusion of certain type of transfer involving technical assistance, R&D, and financing.

Argentina declared that the treaty must be non-discriminatory in nature and be based on consensus.

China stated that the ATT is intended to regulate actions in arms trade, prevent and combat unregulated arms trade. It is not a treaty for arms control. The ATT should only address the problems in arms trade and not include issues related to human development or human rights. It should not hamper the legitimate defense needs of the State nor affect security and sovereignty of States.

On scope, it noted that the seven categories of weapons in the draft paper are not consistent with the UN register list, therefore any extension or amendment of the 7 categories should be conducted with extreme caution. As to the inclusion of SALW, China stated that this is already covered in other fora, notably the UN Programme of Action or the UN Firearms Protocol.

Pakistan called the ATT process "a time-bomb process". It declared that the current discussion gives the impression that we are in an advanced stage of negotiations and it underlined the importance of the principles and objectives of an ATT. Focusing on transfers alone is not sustainable, there is a need to look at the symptomatic side of the purported problem: there is nothing about production and development of arms. As to the criteria of human rights issues and development, Pakistan is concerned that the outcome will not command consensus.

New Zealand stressed the importance of looking at the post-transfer process (i.e., marking, and tracing/tracability).

Russia stated that the goals of the ATT process needed to be more clearly settled in order to enable a discussion on other aspects, including scope and parameters. It thus proposed to define the goals of the documents, which must reach two requirements:

1) It should be clear and agreed by all States and focus on the greatest threat: conventional weapons

2) It should include concrete workable goals to achieve consensus.

It then stressed the important goal of preventing weapons falling within illegal channels.

Switzerland supports the 7 + 1 + 1 approach + also parts and components and military explosives. The section on brokering should be simplified.

Sweden stressed the need to include "parts and components". It gave two reasons: if they are not covered, it can enable controls to be circumvented; and because parts and components can enable the life of weapons to be prolonged and new capabilities to be incorporated. An ATT can increase confidence in export control capability and pave the way for technology transfer. It supports the positive list approach: anything that is not mentioned is not controlled, and recommended not to use a negative list (setting out exceptions to general rule), unless it is comprehensive.

Mexico stated that it is not advisable to include a section on exceptions. The representative raised the serious issue of sport and hunting weapons. They are becoming more and more similar to military weapons, easy adaptable and modified for other purposes, such as terrorism and transnational international crimes. 

Uruguay stressed the need to have a broad approach such as the UN Security Council arms embargoes, which go far beyond the 7+1+1 formula, e.g. military equipment, parts and components. It stated that sport and hunting weapons and antique rifles can be as lethal as military and law enforcement arms.

Venezuela declared that any modification on the language of the UN register should be done by technical experts.

United States stated that regulating the arms trade is an issue of national implementation and shall not fall within the purview of  an international organization. The ATT should be a framework for improving legitimate transfer decision-making. On scope, the US stated that the following should not be included:

- munitions and ammunition,

- explosives,

- parts and components,

- technology,

- technical assistance,

- R&D,

- technology transfer,

- financing.

France stated that an ATT embodies two pillars that distinct but linked 1) Regulation of legal trade, 2) Combating illicit activities. It said that anything that is not explicitly covered in the scope of the ATT is outside it. It claimed that there were omissions in Annex A, such as aircraft and definition of missiles.

Algeria shares the position of the Arab group but recalled the importance of UN Charter principles. Scope and parameters are linked. The scope of the treaty will inform the parameters and vice versa.

Denmark noted that the scope of the treaty should be considered in relation to the scope of weapons as defined in UNSC embargo decisions. At a minimum, those weapons addressed by UN embargoes should be covered by an ATT. Denmark is against including transportation in the definition of transfer as it is difficult to implement within a licensing system. In addition, a definition of arms brokering should not include transportation (problem of licensing).

Colombia mentioned the usefulness of an international mechanism for the regulation of the arms trade. It is in favour of including transport in the scope of the treaty. It was opposed to the inclusion of an exception provision.

Israel stated that the ATT should not cover financing. As to the possible amendments of Annexes, it believed it may involve the same procedure as amending the treaty itself.

Ghana declared that victim assistance provisions should not be treated under international cooperation and assistance.

Germany noted that it is possible to find a procedural solution in relation to State reporting on ammunition. Parts and components are to be distinguished from dual-use goods, the former are used for military purposes and dual-use goods are used for civilian and military purposes.

Russia insisted on the need to agree first on the goals and principle of an ATT before embarking into discussions on the scope. Russia referred again to restricting the illicit arms trade as the primary purpose of an ATT.

ICRC said that the scope should be a function of its object and purpose: to reduce the human cost (IHL and human rights law). It noted that UNGA Resolution 64/48 does not limit itself to any type of arms, e.g. SALW should be included. It welcomed the word "include" on conventional weapons to be covered as not being exhaustive and proposed to redraft the phrase to make this clear.