A preamble to the real negotiations...?

© Jesper Waldersten

As Albert Schweitzer once remarked, "Truth has no special time of its own. Its hour is now -- always and indeed then most truly when it seems unsuitable in actual circumstances." With this in mind, it is hard to avoid the feeling that the current set-up of the diplomatic conference is more conducive to failure than to success. Some might even say that despite the references to "transparency" and "inclusivity", what is going on in the plenary and main committees is little more than a charade, a prelude to the real negotiations.

Day six--of the only twenty available--heard more general statements, listened to states' positions in the Main Committee that is dealing with the preamble and principles, and rounded off the day with an initial exchange of views on implementation. There is no sign of a rolling text, no apparent process for developing one, and very little sign of any narrowing of states positions. With six minutes to go in the preamble/principles committee, there were still 16 delegations that had not yet taken the floor. This time, delegations were not even dangled the ephemeral carrot of a Word document on the screens in the conference hall.

In its general statement, Russia reiterated what is clear to everyone--that it was not an easy task with tight deadlines to reach a consensus on a treaty text. It felt that the Preparatory Committee was not able to carry out its mandate, as it did not present recommendations for treaty language, instead generating only a working paper by the chair. Russia believes that this is a useful document but not a basis for serious negotiation or a prototype for the future treaty. Russia believes that the major goal of an ATT is to combat the diversion of arms to illicit trade via state control in a manner to be defined by the State themselves. Russia stated that it is ready for consensual work on an ATT.

China said that the treaty should reiterate the legitimacy of states to acquire arms, and called for a non-discriminatory ATT. On criteria it was a sovereign right whether or not to give the green light to a proposed transfer, and called for the treaty not to include "discriminatory, political criteria".

Pakistan expressed its hope that the treaty would not be governed by “selective multilateralism”. The PrepCom was useful to understand the diversity of views, however divergent views still persisted. Any treaty, it felt, must address both supply and demand sides of the international arms trade. It should therefore tackle not only trade but also production of arms. The ATT is not a trade or a human rights instrument. There was interplay with commercial, political, and humanitarian issues, and a balance should be struck. It noted that Pakistan has established a mechanism for arms transfers engaging concerned ministries and department and had adopted guidelines at national level.

Switzerland, in line with its humanitarian tradition, called for a strong ATT that would contribute to reducing human suffering resulting from armed violence. It should be based on clear, strict, and effective rules. From a Swiss perspective, every transfer must be assessed in accordance with strict critera that must include: a sustantial risk that the arms would be used or divered for use to commit or facilitate acts of geneocide, crimes gainst humanity, war crimes or any other serious violation of humananitarian law; or human rights law; as well as a substantial risk that the arms would be diverted to the illicit market, thereby critically undermining peace and scecurity and impairing social, economic, or sustainable development. In such a case, the proposed transfer must be denied.

In an innovative move, Germany and Ireland both said that the eventual treaty should be open to ratification by regional and international organisations.

In the committee discussing the treaty preamble and principles, Russia, Iran, and Syria claimed--incorrectly under international treaty law--that a preamble is part of the operative part of an international treaty. In fact, as France correctly observed, a preamble is not part of an international treaty's provisions per se—it sets out the context and recalls the motivation for states to adopt the treaty, while affording some of the basic principles for its interpretation. Moreover, there is no requirement that a treaty even include a preamble. We are losing valuable time to an element that is at best desirable rather than necessary and at worst entirely superfluous. Nonetheless, Russia has requested a legal opinion from the UN Secretariat on the difference between a preamble and the principles of a treaty.

The UK suggested inclusion of a preambular paragraph that would recognise "that the promotion of international peace and security should involve the least diversion for armaments of the world's human and economic resources" (a reference to Article 26 of the UN Charter).