Monday, July 9, 2012

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).

13 comments:

  1. What difference would it make, in your view, if the ATT would have a strong "statement of purpose" (or goals and objectives) in its first article? (e.g. such as art 1. in UNTOC or UNCAC). Is such an article worth fighting for?

    Such an article 1 would be part of the operative part of the treaty (rather than the preamble), but it may still not create unequivocal legal obligations given the usually vague language of such articles and the fact that the wording may not be addressed at specific conduct of states. It would be helpful to assess the compatibility of potential reservations and to assist the interpretation of the treaty in light of its object and purpose, but the same job could arguably be done with a preamble?
    P.S. This "non-discrimination" issue almost reminds me of the religious defamation debate... Individuals have a right not to be discriminated against. Sovereign equality is another kettle of fish altogether. Certainly, the UN Charter allows (and even promotes) states to negotiate criteria that allow exporting states to deny arms transfers.

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    1. Thanks for the comment. In our view it's nice to have but not necessary to have. As you rightly point out, it could help to determine the object and purpose of the treaty in order to judge the legality of any future reservations, but the real issue before us was, and remains, the criteria for assessing the legality of proposed transfers and the consequences should a transfer contravene one or more of those criteria.

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  2. Thanks for keeping the public updated through your posts! I was at the PrepComm in July 2010 and I am happy that I can now follow the treaty negotiations though not being present.
    Although what I read so far does not really make me happy....

    Verena (Germany)

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  3. I'd like to second what Verena said. Your blog is an essential resource for those interested in the ATT negotiations and perhaps the only place in the world wide web where it is possible to find detailed up-to-date info on the ongoing conference.

    I participated in the mock ATT Conference at the NMUN Model UN simulation in NY last April and let me say that the info on this blog was a god-given gift for me during researches. To my knowledge, a lot of students participating in the simulation also used this blog in their research prior to the event.

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  4. True, there is no rolling text to be seen at the moment but I believe the President and certain key delegation have a draft text which will be circulated soon after this debate over. They are now busy watering down the critaria and elements to be acceptable to all. Judging from the P5 behaviour, they are ready to have a (weak) ATT. The key battle is among big nations behind the scene. What do you think?

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  5. Hi Endo,
    That's the rumour, but I'm not so convinced. Does the P5 have a text ready? Quite possible. At least, they must have agreed on what they're all prepared to accept, and one or two states, e.g. France, appear to be talking from a script rather than from the heart. This will, as you rightly note, be weak. The danger is that human rights or humanitarian law don't get a mention beyond the preamble and it's basically a reiteration that the illicit trade is illicit.
    But does the President of the Conference have a treaty text he popped in the oven before the discussions started? Actually, I hope not, as the Discussion Paper he (rather bizarrely) issued on 3 July was so poor, we could fear what the next text could be. This morning India, which in general has made a pretty positive contribution to this conference, called for a rolling text to push the negotiations forward. In response, the President promised that one would come out soon on scope. This would have to be based on the many inputs from states; he couldn't just trot out a pre-cooked version and slap it on the table (at least without appropriate amendment).

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    1. Hi,

      It will a huge blow to us if the IHL and IHRL criteria are not mentioned in the treaty. While, the 3rd Chair's paper considered by many is weak (compare to his march paper), it still mentions IHL and IHRL as criteria in arms transfer. Only he and his dog knows, why he distributed another chair's paper when most States were happy with his 2011 version. Is it only me to think that P5 statements are all in line with the latest chair's paper?

      Transfer of illicit weapons is only a fraction of the problem, the legal ones are also similarly dangerous. With what weapons Assad kills children and his fellow countrymen? With what weapons Khadafi killed the people of Banghazi? With LEGAL weapons. Hence, focus on illicit trade is a joke.

      Btw, thanks for your daily report. It gives readers an opportunity to closely follow the negotiation.

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  6. As a Canadian gun owner, I am glad to see that this process is failing. The whole thing is a sham -- and another way of taking away my rights.

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    1. Hi Canadian gun owner,
      Thanks for your comments. Why do you think an ATT would take away your rights? Which specific rights are you referring to? Are you using your guns to murder or torture people? For that is what the treaty, it is hoped, will do--prevent some of the governments and non-state actors that are wilfully and without any lawful reason, killing and wounding, or are using guns to facilitate torture, rape, or enforced disappearances. So arms cannot be transferred to regimes or groups that commit such acts. It does not apply to internal sales anywhere of any weapons, just to be clear.

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  7. Why do I think that you and your UN buddies are trying to take away my rights?

    It's in black and white:

    "Unfortunately... there had been no agreement reached on two of the most important issues -– maintaining and controlling private ownership of small arms and the transfer of such weapons to non-State actors -- even though there was overwhelming support for their inclusion in the outcome document."

    SOURCE: http://www.un.org/News/Press/docs/2001/DC2795.doc.htm

    If the ATT is not about preventing private ownership (which it is, of course) then put the following wording into the document:

    "The UN fully supports the rights of private owners to own, purchase, and trade firearms and ammunition."

    The UN is the most inept and corrupt organization in existence. Proof in point is the fact that Iran is playing a lead role in the ATT process. What idiocy. Iran can't even comply on nuclear proliferation treaties and yet, they are going to play a lead role in TRYING to remove my firearms?

    Not on your life.

    It is obvious from your writing, that you are an intelligent and passionate fellow. And you are trying to make the world a better place, in a manner that makes sense to you. I respect that -- however, I think you are wrong in what you are trying to do. And even though I am a peaceful man, and a retired law enforcement officer -- NO ONE is going to take away my firearms.

    Respectfully,

    Canadian Gun Owner

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  8. Canadian Gun Owner,

    Would you be able to indicate which provisions of the NPT and its additional protocols Iran has violated? None, to my current knowledge. You would get your points across in any discussion much better without employing empty rhetoric, especially if you are not well acquainted with the NPT and the treaty regime.

    I believe there is an understanding between the participating States that domestic gun ownership questions will be left outside the scope of the treaty. It's a shame, though. We all know, for example, how the Mexican drug gangs are slaughtering thousands in Mexico. Any Southern hill-billy just walks into any gun shop in Arizona, purchases 10 .50 sniper rifles for "personal use", and then sells it to Los Zetas to be smuggled accross the border the next day. So much for the domestic "private ownership".

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  9. You sound like Iran's UN Ambassador and are splitting hairs as only a liberal can. You give the perfect example of why the US and Canada should cease all funding of the UN. It is corrupt and ineffective at stopping what it was chartered to do.

    http://www.csmonitor.com/World/Middle-East/2010/0504/NPT-101-Is-Iran-violating-the-nuclear-treaty

    How can people be slaughtered in Mexico, when guns are illegal by law?

    Only law-abiding citizens are affected by gun control. Criminals and terrorists never are.

    If every average Jose in Mexico owned a firearm, fewer would be victims. The same thing goes for what happened in Colorado and Toronto.

    Canadian Gun Owner

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