Wednesday, July 13, 2011

Day 3 of the Third PrepCom - National Implementation (contd.)


Prefers Article 18 of the Vienna Convention on the Law of Treaties to what is in the Chair’s proposal. For entry into force, it seems there is general agreement on setting the number of ratifications at 30. As for withdrawal, the text of the provision should be as clear as possible. The new provision could be drafted as including extraordinary circumstances, supreme national interest, etc., to justify the withdrawal. Relating to dispute settlement, it suggested using the corresponding provision in the Convention on Cluster Munitions. It also called for a provision on relations with States not party.

Joined the Swiss proposal on import and export. It wished to have stronger language on information exchange. On “Jurisdiction AND control”, it wanted to delete the word control altogether. It supported 30 ratifications for entry into force. With regard to reservations, it wanted either to include a clause that says no reservation or to have one that gives more guidance on who decides if a reservation is incompatible with treaty (maybe the Assembly of the States Parties). Practice shows that objections to reservations are often unclear and are a delicate matter for states. Reference to arbitration and the International Court of Justice should be included in the provision on the settlement of disputes.

Whishes 60 as a number for ratifications necessary for the entry into force. On withdrawal, there should not be any conditions as it is a sovereign right. On reservations, it would be better to say which organ or entity could declare that a reservation is incompatible with the object and purpose of the treaty. As for settlement of disputes, it seems that the provision only deals with the first stage of a dispute between States Parties and more should be added on judicial means of settlement.

Supported 30 as the number of ratifications to trigger entry into force. Considers that the ATT should not allow reservations, otherwise a reserve to the clause of transfer, criteria, etc. would necessarily be a means to avoid the application of the treaty. There should also be a provision on relations with States not party.
Papua New Guinea

Wants to include SALW in the treaty. There should be a regionally based reporting mechanism for reporting and it thinks that assistance will be needed for record-keeping. The mechanism should only have a repository and secretarial role. International assistance will be needed to implement the treaty.

The purpose of the Assembly and the review conference seems to be the same. It should be clearly stipulated what are their precise roles and functions. The procedures of such mechanisms should be established in the treaty itself. Relationship between States Parties and State not party should also be examined.
Trinidad and Tobago

They are ok with the reservations clause as it is the same as the VCLT and part of customary law.  The review conference should also allow States not party and other entities to attend as observers. The provision on dispute settlement should be more elaborated, and a provision on more diplomatic settlement and then traditional judicial means should be included. Inspiration could be drawn from environmental law regime (e.g. the Kyoto protocol), which have original provisions on means of dispute settlement.

Russia wants more than 30 ratifications, and believes that 60 is a better level for entry into force. Anyway, all of this is hypothetical, as it still doesn’t agree on the scope and parameters.
The EU

To allow the swift entry into force of the treaty the number of necessary ratifications should be fixed at a reasonable level. Regular Assemblies of States Parties and review conferences are a good tool for the treaty.

Reservation on certain types of weapons cause great difficulties so reservations should not be allowed.

Denial of transfers should only be based on treaty provisions and not political reasons. So the terms ‘for any other reasons’ is not acceptable to Iran as gives too much leeway to political abuse. Reports should not contain sensitive information related to national security. Law enforcement should not be dealt with at the international but only at the national level. In principle, brokering should not be included in the ATT. Corruption is already dealt with in other instruments and so it should not be included in the ATT. The implementation unit, as presented by the ODA, is not supported by Iran, as it believes that it is a matter of national concern and should be dealt with at the national level.
United Arab Emirates

60 ratifications should be the number required. On reservations, they support the provision as written. Assemblies of States Parties are a good idea. They believe that the limits of the mechanism and their functions should also be determined. A clause which clarifies the relationship with States not party should be included.

The text is only a reference as we are not there yet. Assembly of States Parties should facilitate cooperation between States Parties, while review and implementation should be dealt with by the review conference. For amendments and call for an assembly a minimum number of states should be requested (e.g. 30).

Ok with 30 ratifications.  Colombia has doubts as to the need for an assembly of States Parties and a review conference. There might be a cross-over in functions, so the tasks of the two should be clearly defined. Or we should maybe only have one type of organ, with all functions (review, reporting and implementation). As to the relationship between States Parties and States not party, the ATT should include the important principle stating that a State Party must always respect the provisions of the treaty in transferring the arms whether or not the recipient State is a party to the treaty or not.  
New Zealand

The text of the ATT could include a provision specifying which clause could not be object of a reservation. They believe that 30 is a reasonable level for entry into force.

60 ratifications seems a reasonable level for Australia for entry into force.
United States

We should not get into treaty text as we are not yet there. Entry into force provision: trying to set down a particular set of countries that should be party before the treaty goes into force should not be a path and the US does not want that either. As for the object of the treaty with regard to the reservation clause, this should be very clear. Two elements are clear: a large number of states should be part of the treaty so 30 is too low. Then you also want to have states that are particularly interested States Party to the treaty, but how to know which those are. In general, we use the criteria of value of exports but those vary with time. We should wait for the actual negotiations before getting into the details of the final provisions.

Cuba does not see how the treaty can be effective if major exporting countries are not party to it.

Some states wishes to have 60, 70 ratifications for entry into force arguing that that would ease universal adherence, However, Norway underlines that there is no contradiction between universal adherence and low number of ratifications. Indeed the most universally ratified treaties are the Geneva Conventions and there were only 2 ratifications required.

Clear functions of two bodies should be defined. Are ok with 30 ratifications. Should mention ratification, approval and accession. States should also provide explanations when they withdraw. ATT should also plan how many States Parties are necessary for amendments.

The question of scope and criteria are intermingled with implementation. So far it is not known what the aim of the treaty is. For some it is a disarmament treaty, for other it is an instrument to fight illicit arms trade, for other only a regulation treaty. It is time to assess the aim of the treaty and the right of States to acquire arms to defend their sovereignty should be included. Criteria should be free from polarization. Reporting must be voluntary. What kind of information will contain the reports? What about military alliances? If the aim is universal participation, in terms of ratifications, a high number must be met. Major exporters must be included otherwise it won’t be useful. Reservations as well as denunciation are sovereign rights of States.
The Netherlands

Exporting countries are not more important that other States in terms of ratifications. Indeed, the ATT will try to deal not with the numerous licit exportations which exporting States do all the time, but will try to address the few problematic ones. Hence, every country is concerned.

The proliferation of arms is a major concern. Criminals today can have very easy access to sophisticated armaments which sometimes contribute to fuel violence almost to a war-like degree. The ATT is necessary as we face now not a regional problem, but a worldwide one. International police cooperation is crucial, for example in relation to information exchange with regard to the implementation of the treaty. International police cooperation and how to best put it in place should be included in the ATT.

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