Day 2 of the Third PrepCom - National Implementation

Philippines – To effectively implement the treaty there is a need to include reference to international cooperation and the right to self-defence. The distinction between importing and exporting States is important. It also stressed the importance of the principles of sovereignty and territorial integrity.

 

Singapore – Regarding transit, not every State has the capacity to implement all the provisions. It thought they should strive for a treaty that is not too complex and onerous.

Chile called for language to be avoided such as “abuse of power”, which are difficult to understand in a legal instrument.

Malaysia – A potential ATT must be objective and balanced. Linkages to issues such as human rights, poverty, and corruption (which is not measurable and is too broad) are not helpful. Linking these concepts to security matters would unduly burden the subject . The proposal on transfer denials is too ambitious and burdensome, and the proposal on denial notification should be deleted as it affects bilateral relationships. The minimum period of keeping records should be five years, while the decision to share information should be the prerogative of each State.

(c)Jesper Waldersten

The EU and others stated that the guiding principles should be in the preamble, while treaty application remains a national responsibility and the assessment process to be conducted at national level. Importing States should put in place measures to monitor and control transfers of arms and ensure compliance with binding legal obligations. Further details of these measures should be decided at the national level. States Parties should address corruption and money laundering (including by reference to obligations under other instruments)

Russian Federation said that the measures to be implemented are far from being agreed. On national systems, it lacks the key word of control: “national control”. Domestic arms circulation should not be taken into account.

Jamaica stated that implementation must occur at a national level and supported by action at the international level. States Parties should be free to put in place additional measures. Transit States should be notified prior to entry into ports. Jamaica supports the section on transfer denials (which would contribute to transparency). Reporting and record-keeping are vital aspects, and annual reporting should be mandatory. An ISU is important, and the body should be independent, flexible and robust. The ISU would assist with implementation, including identifying implementation gaps at national level, and should be a mechanism for facilitating international cooperation and assistance, and serve as a repository of annual reports.

France (on behalf of the P5) said that the ATT is not a disarmament treaty, and should not affect the legitimate arms trade or the right to self-defence. Any decision to transfer arms is an exercise in national sovereignty, and this must be the core principle of the ATT. An effective ATT would help curb the illicit trade in conventional weapons that is undermining security and prosperity, and all States share responsibilities to ensure that weapons are not diverted to illicit purposes or activities. The ATT should be simple, short, and easy to implement. Domestic implementation in accordance with national legislation and regulations in line with ATT obligations would be the most practical way to address implementation.

Canada said that implementation provisions should be easy, short and simple. It felt that the opening paragraph in paper was sufficient for this. States Parties should retain flexibility, and details in the treaty on implementation should be realistic, since many States may not have capacity/resources to fulfil an ambitious implementation provision.

Canada cannot support a system of controls where imports would be treated in the same way as exports. Information sharing is necessary but much information is confidential (national security, commercial-in-confidence, or privacy considerations). Canada is concerned with  any proposed obligation to enforce measures on citizens regardless of physical location (concerns with extra-territorial application of State laws), and would urge caution in this regard.

Indonesia said that scope/criteria should be discussed at this meeting, and that the ATT should not undermine primary responsibility of States in controlling export/import/transfer of arms. The ATT should not hinder or generate political restrictions for developing countries. National legislative/administrative measures necessary to implement ATT provisions should be required, but implementation is inseparable from international cooperation and assistance. Indonesia is concerned with references to poverty reduction, socio-economic development, and corruption (which should be regulated by other instruments). Denial notifications should be considered under the section dealing with consultation; there should be a mechanisms for States to express their views regarding denials.

Sweden – dispute settlement mechanism should be related to implementation but not in relation to sovereign transfer control decisions (which would introduce a supernational element that has not been entertained by anyone). An ISU need not deal with implementation assistance, it would be more secretariat functions, and perhaps serve as a clearing house for implementation assistance.

Germany aligned itself with the EU statement. It felt that only brokering of unauthorised transactions should be criminalised. Arms manufacturers may need to undertake brokering activities, and it was unrealistic to require a licence for this. The ATT should not create blacklists for previously denied importers/exporters: each application must be addressed on its merits.

USA said that the national authority should use new technology, such as tracking by electronic means. Transit (recording all transfers across its territory) is unworkable in practice. License and export denials should not be covered in the ATT in the reporting mechanism. The reporting regime should be tailored to its goals and objectives. The US supports an Implementation Support Unit (ISU) as long as it is small and independent and support it financially.

Grenada was in favour of an independent secretariat to support the implementation of the treaty.

South Africa – re. export, it was concerned about the terms used: “transparent and predictable”. Transparent is a vague concept and predictable is a bit ambiguous. On para. 4 of the Chair's text, a State cannot guarantee non-diversion of  the arms once they have been exported. On enforcement: brokering (agents) and corruption (State officials) should be kept separate.

The Netherlands – said the term “political abuse” was vague, and might suggest there was an obligation to supply.

India – The language on implementation and application section may raise constitutional issues in many countries. The language should be short and general. India questions the relevance of using the term “National authority”. On validation/authorisation on arms transfer, not every part of the transfer chain is under the control of the exporting States. India questions the need to include a section on transfer denial.

Mexico – On the criminalisation of conduct, Mexico stresses the need to include obligation to try or extradite the persons violating the treaty.

Iran – The ATT should ensure a legal arms trade, and the treaty should be consistent with the UN Charter, and fully respect the sovereign and inherent right to manufacture and conventional arms for self-defence and security needs in accordance with Article 51. The ATT must be balanced in terms of rights and responsibilities of all arms exporting and importing States, and must prevent political abuse of its provisions. An ATT must ensure that refusal can only be undertaken on the basis of treaty provisions, and not for ‘any other reasons’.  The ATT must also prevent parties from taking steps to unduly restrict the security rights, needs, and interests of other States Parties. It must also ensure that international transfers for civil purposes will not be restricted or denied as a result of implementation. An ATT will not work if exporters do not join. An ATT will not assist gradual disarmament.

Venezuela – the section on implementation may be more relevant to a disarmament treaty than to a trade treaty. An ATT cannot be considered a disarmament instrument, and the submission of information within the framework of transparency must be done on the basis of a voluntary commitment. Treaty provisions should not pre-judge the right to self-defence, and more consideration needs to be given to an ISU (which States will be represented, will it be within the structure of the DDA or another structure, what will the range of responsibilities be)? Venezuela would not support an ATT being used as a restriction on the legal arms trade between countries. The treaty must preserve States’ rights to manufacture/import/export arms.

Ireland – the scope of the ATT could impose administrative challenges but effective control of these activities will be essential to preventing diversion to illicit purposes. Reporting is a key element, therefore Ireland supports the adoption of the highest feasible level of transparency (noting administrative realities and issues of confidentiality). It has concerns about the provisions on transfer denials.

Algeria – the implementation paper may need some re-organisation. Implementation must respect national sovereignty, and the list of national contact points should be replaced with a support group. The status of the ISU must be defined, and whether it will report to the UN (Algeria hopes it would). It should be funded by States Parties, and the scope and size should be simplified at the start.

Zimbabwe – ATT should uphold States’ rights to arms themselves and engage in arms trade without unnecessary encumbrances. The language should be clear to avoid the ATT being used as an instrument to interfere the internal affairs of other States (e.g. effecting unconstitutional regime change), linkages to human rights should be avoided, since such concepts may permit ATT to be used to deny States to exercise their rights to obtain arms for self-defence. Transparency provisions conflict with confidentiality concerns.

Israel – denial provisions are excessive (confidentiality concerns), while some reporting requirements (existing or new national legislation and procedures) are easy and simple. Other reporting requirements should be carefully considered, taking into account confidentiality concerns. Too-detailed reporting will be burdensome, contentious, and create report-fatigue. The ISU’s main function should be provision of professional assistance to countries which require and request such assistance, and the ISU’s size should fit its designated functions and take into account financial constraints.

Egypt – ATT should not be as focused on national implementation, this would create inconsistencies and subjectivity. National implementation measures should implement the international reference points set out in the ATT. There is limited potential for universality if only exporting States are required to implement provisions, and the paper does not address production and stockpiling. Most States are already dealing with brokering, so the ATT should focus on illicit brokering only, and an  international instrument already covers corruption, so the ATT is not the framework to address corruption. Reporting should cover export licensing as well as actual transfers, and should build on existing models (UNCAR) but be more developed and detailed. Reporting denials is necessary in order to allow States to assess effectiveness of ATT, and serves as a safety  measure against unjustified denials. An ISU can play a role in checking for unjustified denials, and a legal assistance role can be assigned to ISU along with other roles mentioned in the paper.

UNODA – clarifying different options for implementation support, generally three types: (1) stand-alone independent organisations (eg OPCW and CTBTO), seen as suitable to undertake complex and technical functions (compliance verification, fact-finding, inspection) and would be funded by States Parties only and will need to be built up (advantage is direct control, insulation from UN, high visibility to the treaty; disadvantage is overhead costs and potential politicisation). (2) ISUs (BTWC, CCW, APMBC) are embedded in established inter-governmental organisations (e.g. the UN or GICHD). The advantage is an existing regulatory framework, direct control by States Parties, cost-effective and synergies with relevant expertise and resources, while the disadvantage is potential politicisation. Secretariat functions performed by the UN (e.g. SALW POA, UNCAR), may be suitable for instruments with near-universal membership, funded through UN regular budget. The advantages include use of an existing regulatory framework, benefits from UN capacity and experience, lowest costs, synergies with UN systems. The disadvantages are low visibility, budget not controlled by ATT experts, a perception that it is prone to politicisation. Appropriate modalities will depend on the tasks assigned in the ATT, and the mandate should be clear.

Member States statements may be found in the UN ATT PrepCom website.