Tuesday, March 1, 2011

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.

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