A fightback ... of sorts



© Jesper Waldersten

This morning, we heard several enlightened delegations tackle head-on the heart of the new paper on criteria, calling for proposed transfers that would fall foul of the criteria to be automatically denied. Leading the charge were, in alphabetical order, Liechtenstein, Mexico, Norway, Portugal, and Switzerland. Too many other enlightened States, however, hedged their bets or were unnecessarily vague on what specific language they wanted. The Netherlands, for example, said risk assessments were “not for fun”. Even fluffier was the European Union, which stated only that there was "particular work needed" on paragraphs 4, 5, and 6 of the newest proposed text, which deal with the consequences for the proposed transfer where there is a substantial risk that the arms will be used to violate various aspects of international or national law.

Several contras took the floor to decry the latest Chair's draft, as weak as it is. Venezuela stated that the latest paper was not a good basis for consensus. Syria said it would prefer the Chair's previous paper. India said it "cannot join those who showered praise on this [new] paper", which mixed assessments and included aspirational concepts. It could not support a "casual reference" to international criminal law. Ecuador said that criteria should not be based on assumptions or subjectivity (it gave as examples references to socio-economic development or corruption). Papua New Guinea agreed. Egypt stated that it did not understand how a risk assessment would be made in an objective, non-discriminatory manner. It claimed that the only way was for assessments to be based on decisions from competent multilateral bodies.

China complained that its concerns had not been incorporated into the latest draft. It referred to the inclusion of references to international humanitarian law and  international human rights law, and questioned why not include environmental law or other branches of international law? As China felt it was not feasible to be exhaustive it proposed instead the language of “serious violations of international law” (an interestingly novel and broad concept!). It later intervened to propose "...international law, including international humanitarian law and international human rights law". It also called for a new criterion whereby the proposed transfer would not “interfere in the internal affairs of other countries”. 

In a brief but helpful statement, the UK stated that in its view the term "transfer" under international law included gifts or loans, a correct understanding in our view. It called on other delegations to make it clear if they felt this was not correct. There was also a short, rather surprising exchange on "gender-based violence", with the Holy See strongly opposing the inclusion of the word "gender" in the treaty. It found support in this from Algeria, among one or two others.

At the end of the morning session, the Chair said he would issue a new paper on criteria, but would not change the critical wording of only a bare "presumption" against authorisation for irresponsible transfers.

The afternoon session continued the discussion of criteria. While delegates were waiting for the printed copies of the new text to be circulated, Malawi was given the floor. In an extraordinary ten minutes, he began by methodically listing the 70 delegations on whose behalf he was speaking.* At the end of the list he received a well-deserved round of applause just for his efforts. Of more significance, however, the statement included the following remarks:

"On criteria, these must, in the words of the GA resolution 'address the problems relating to the unregulated trade in conventional arms and their diversion to the illicit market'. We need this treaty to prevent authorization of transfer of conventional arms where there is a substantial risk that those weapons would be, inter alia:
- used for, or facilitate, serious violations of international law, including international humanitarian law and human rights law,
- having a destabilizing effect or exacerbating existing conflicts,
- diverted to unauthorized end users."

It remains to be seen whether this is indeed a pivotal moment, but it was certainly an impressive and highly welcome orchestration in favour of a meaningful Arms Trade Treaty. As H. L. Mencken said, "It doesn't take a majority to make a rebellion; it takes only a few determined leaders and a sound cause." In the ensuing debate, Mexico, Switzerland, and Trinidad and Tobago offered suggestions to significantly strengthen the Chair's text, including to require a denial of authorisation each time the criteria were met. Comments from the contras were largely true to previous form. Pakistan said it could not accept a presumption of denial. Indonesia again talked about politicisation. But perhaps the most astonishing of the final statements of the week came from the USA, which reiterated its position that it could not accept absolute prohibitions, since there might be "security imperatives in favour of export". Thus, the land of the brave and the home of the free is openly arguing that its undefined "security imperatives" would justify their exporting weapons in full knowledge and understanding that they were likely to be used to commit genocide or crimes against humanity. Truly, this is a strange, sad world we live in.

So where does that leave us at the end of the third of four weeks of negotiations? Well without a comprehensive draft treaty text for one. The draft was supposed to arrive on Thursday, then on Friday, and now on Monday. Don't hold your breath, though. The President of the Diplomatic Conference has every interest in making delegations wait and forcing them to hammer out a basic agreement in the informal sessions that will be held throughout the weekend and beyond before he dares to put another treaty text on the table. This time, his text needs to be a professional and almost final draft, given how little time remains and accepting that many delegations will need instructions from capital on how to proceed before a treaty could be adopted. One thing is for sure, the process will not be transparent. For, to quote the old joke, "People who love sausages and respect the law should never watch either being made."






* The names of these States are worth noting for posterity: Austria, Belgium, Bulgaria, the CARICOM member states (Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago), Chile, Colombia, the Czech Republic, Denmark, Djibouti, the ECOWAS member states (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Greece, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo), El Salvador, Estonia, Fiji, Germany, Ghana, Guatemala, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malawi, Mexico, the Netherlands, New Zealand, Norway, Palau, Papua New Guinea, Peru, Poland, Portugal, Romania, Solomon Islands, South Africa, South Sudan, Spain, Sweden, Switzerland, Uganda, Uruguay, Vanuatu, and Zambia. Of particular note are the following absentees from the list: Australia, France, Japan, and the UK.