Monday, July 16, 2012

Eton Mess

The quaintly named "Eton mess" is a traditional English dessert consisting of a mixture of strawberries, pieces of meringue and cream, which is traditionally served at Eton College's annual cricket game against the students of Winchester College. It is rumoured that the dessert was created when a meringue dessert was dropped on the floor and what could be salvaged was a crushed meringue which was served with strawberries and cream.

What does this have to do with an Arms Trade Treaty? Well, first of all, the inadvertent creating of Eton Mess, if slowed down one thousand times, would still be speedier than the current drafting process for the ATT. About 80 States are actively contributing to an on-screen Word document in the negotiating room to which new text is laboriously added in red-coloured revision mode. Watching this chaotic approach to treaty elaboration is akin to viewing a train crash in slow motion.

Today, the countdown started from 10 negotiating days left. And it is increasingly clear to numerous delegations that too many important differences are simply irreconcilable and that we have insufficient time to conclude an agreement worthy of the name this month. For example, despite more than 20 delegations taking the floor on criteria this morning, there were 26 speakers still on the list when the session closed. This monologue will continue tomorrow afternoon, following which the chair of the committee will somehow try to revise his paper, only to  begin the same process again on Thursday (by which time just over six days will remain). And positions seem as far apart as ever. The contras have something right---there's no agreement in the room as to what exactly it is we are trying to achieve. Banning illicit trade or preventing irresponsible transfer? Establishing common international standards or reinforcing national sovereignty and discretion? Drafting a trade agreement to level the playing field or elaborating a treaty to prevent violations and abuses of human rights?

It's always overly tempting to see the world in Manichean terms--good versus bad; contras versus the enlightened--but the dynamics at play in the room are actually more complex than that. Shades and nuance exist among the enlightened as they do over on the dark side of the force, and many delegations are happily hiding behind the shirt tails of others. And to add to the confusion, some issues are genuinely difficult from a moral standpoint. Many states argued today, as some have done before--that all transfers should be prohibited to non-state actors (by which is meant terrorists and rebel groups, for the most part). While an overwhelming majority of us can surely stand behind a principle whereby al-Qaeda should not get weapons, how about the rebels in Syria? Or Libya last year? Or the Kosovars in the late 1990s? How about the Tutsi refugees in 1994? Or the Bosniaks in the mid-1990s? And how much of the overall problem are the NSAs? Certainly not all of it. Who gave us the genocide in Rwanda and facilitated mass slaughter at Srebrenica? Who gave us Operation Cast Lead and the indiscriminate shelling of civilians at Mullaitivu, the massacres at Homs and Houla?

The greatest danger now is that we end up supporting a straw man argument which justifies a treaty regulating only the illicit trade (by which is meant a transfer not authorised by the state). Follow that logic and surely all we have to do is legitimise the formerly illegitimate and we can claim victory. Maybe explicitly ban transfers to NSAs while we're here. What a Pyrrhic victory that would be.

It must not be so. No treaty at all is preferable to a treaty that would allow a state to lawfully transfer weapons where they are likely to be used to commit or facilitate acts of genocide. For this is where the Russian-inspired P5 approach to criteria as a subject of purely national discretion is surely leading us. States are already responsible in international law for complicity in an international crime such as genocide or crimes against humanity. The treaty must not be allowed to become a lex specialis that might legitimise enabling such atrocities through the arms trade. 

It is not yet too late. But if we are to avoid this grim reaper scenario, the NGOs have a critical role to play. They need to make it loud and clear to States they can influence that a treaty which does not actively prevent transfers likely to be used to commit or facilitate international crimes or other serious violations of human rights or humanitarian law must not be adopted. It's not a treaty at all costs. For such a cost could ultimately be paid with too much blood.

And who knows, perhaps with some slick diplomacy and powerful campaigning, the drafting mess that gets scooped off the floor on the 28th of July may, just may, be magically transformed some months or even years hence into a treaty that will truly make a difference. The world has waited this long for an ATT, after all. Let's wait a little longer and make sure we get it right. For in the words of the author Napoleon Hill, "Patience, persistence, and perspiration make an unbeatable combination for success."


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  2. Thanks for the update. I have been worrying for a long time, but the time may have come, or may come very soon, when NGOs will need to make clear that the worst case scenario is not a failed negotiation with no treaty. As you suggest, a meaningless but celebrated ATT can do much harm, including at the domestic level. It would offer a convenient excuse to legislators eager to lower domestic controls (and such legislators do seem to exist). After all the campaigning, it will hurt to declare the ATT negotiations as a failure, but it may unfortunately still be the best option for NGOs and those states really interested in saving lives and limbs. If the magical transformation we all hope for doesn't arrive before the 28th of July, I would much prefer the diplomats go home with empty hands than with a few messy track changes metamorphosed into a trade agreement disguised as a humanitarian instrument.
    Let's hope the next few days will prove me wrong and behind the scenes, some clever diplomats are busy baking an entirely fresh and unimpaired meringue.

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