Thursday, March 3, 2011

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.


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