"Not a failure, just success deferred"?

United Kingdom Ambassador Jo Adamson's tasty soundbite in the final plenary of the Final United Nations Conference on the Arms Trade Treaty became the mantra for those states--the overwhelming majority--that wished to adopt the draft ATT put forward by the Conference President, Ambassador Peter Woolacott. In practical terms, Ambassador Adamson is absolutely correct. The Russian Ambassador to the UN, while resolutely blocking Mexico's doomed attempt to push through the treaty "on the basis of consensus", explicitly acknowledged as much. Clearly, the votes are there in the UN General Assembly for a straightforward adoption of the ATT, perhaps as early as the first week of April. Surely this is a triumph, albeit a temporarily frustrated one?

 

There must remain a sense of unease, however, for those who proclaim that UN disarmament machinery, operating under the rule of consensus, can deliver meaningful agreements. The ATT will only exist because of the possibility of voting in another forum. Otherwise it would be dead in the water, and states would be forced to go outside the UN for a stand-alone process, further underlining the UN's impotence in limiting the destruction of modern armaments. In any event, India and Russia will in all likelihood not sign the ATT, let alone ratify it. China's position is uncertain, and they studiously avoided commenting on the substance in their closing remarks to the Conference. The Arab League is against the treaty, as are a number of Asian countries, even though none blocked its adoption aside from the DPR Korea, Iran, and Syria. Universality will, sadly, remain a pipe dream.

 

We have the Conference on Disarmament that cannot agree on a mandate, let alone a treaty. The CCW is going nowhere, and slowly. The Security Council is largely divided on protection issues. Even the ATT Secretariat may be established outside the UN, such are the doubts about the capacity of this now aging institution to act effectively to protect civilians against armed conflict and armed violence. What then is the appropriate forum for addressing either conventional arms or weapons of mass destruction today? Can the Human Rights Council help to fill the normative void within the UN? Perhaps buttressed by recourse to the type of stand-alone processes launched by Canada and Norway, respectively, to prohibit anti-personnel mines and cluster munitions?

 

Let us hope so. For otherwise, the lessons of the ATT may ultimately be that it was not "just success", it was also "failure deferred".

Iran, North Korea, and Syria shoot down the ATT ... but only for now

Three States blocked the adoption of the ATT this evening in New York. Iran said: "I would like to make it crystal clear that Iran objects to the draft decision." DPR Korea said that it "will be more than crystal clear", namely that it objects to the draft decision. It means it was blocking the draft decision. Syria said, "maybe speaking in English will be crystal clear." Syria also blocked consensus and formally objected to the adoption of the decision. It said that more than 120 countries had called for the words "unauthorised end user" to be included unambiguously in the treaty. The representative cited the WHO statement on the meaning of consensus from 4 August 1987, which meant adoption of a decision without formal objection or votes.

 

The President then gave the floor to Mexico. Mexico said that the overwhelming majority of States were in a position to adopt the treaty text. Mexico suggested to proceed to the adoption of the text as there is no established definition of the term "consensus" in the United Nations. Nigeria supported Mexico. Japan also supported Mexico. Costa Rica then supported Mexico's statement. Chile then supported Mexico's statement. Colombia "resolutely" supported Mexico.

 

But Russia then took the floor to say that not enough had been done to achieve consensus. A "strange thing has happened", that "we should simply ignore the rules of procedure". This, it said, is "quite unacceptable" and "a manipulation of consensus". Russian delegation categorically opposes this. The President then gave his understanding that one State could block consensus and he took it that Russia was blocking consensus. Iran then asked for the floor and said that everyone has to play by the rules. President concluded that there was no consensus in the room.

 

Kenya, speaking on behalf of many States, including Mexico, Norway, UK and USA, said that the will of the overwhelming majority of States was to adopt the treaty text. We will seek action in the General Assembly with a resolution "as soon as possible". Cote d'Ivoire on behalf of ECOWAS said that the text did not meet some of its concerns. For instance, it did not include the words "unauthorised end user" in the treaty. Yet, it found that the President's text showed greater progress. ECOWAS supported the draft treaty.

 

Peru deeply regretted that once again we had been unable to adopt the Arms Trade Treaty. It supported Mexico and Kenya. South Sudan supported Mexico. Trinidad & Tobago regretted that consensus was not possible. It hoped for more flexibility in the General Assembly. El Salvador "resolutely" supported Mexico. Papua New Guinea supported Mexico and Kenya. The Netherlands associated itself with Kenya's statement.

 

India said the draft fell short of its expectations. There was a "fundamental imbalance" in the text, biased against importers. It said consensus was well understood in the United Nations.

 

Uruguay supported Mexico's statement that there was no agreed definition of consensus.

 

The United Kingdom announced that they would take the text to the General Assembly as soon as possible. It was just "success deferred, and not deferred for very long". The treaty included human rights "at its heart".

 

Morocco said it regretted that no agreement was possible. It found the text imbalanced.

 

Guatemala deeply regretted that no agreement was possible today. It supported Mexico's statement. Sweden supported Kenya.

 

Pakistan said they were "close but not close enough". It wanted to see the principles in the treaty itself. It regretted the lack of definitions. Sudan regretted lack of explicit prohibition on transfers to non-State actors. It supported Russia.

 

Italy supported adoption by General Assembly as soon as possible.

 

Kuwait, speaking on behalf of the Arab Group, said that Arab demands had not been reflected in the text. It was astonished that foreign occupation was not mentioned in the principles section of the treaty. It wanted "end user" instead of "end use". 

 

The European Union called for swift action by the General Assembly.

 

The USA said the final draft had its support.

 

Russia said that the Conference was close to a positive result. The text was "a little more mature". There was no explicit prohibition on transfers to non-State actors, which was a "huge gap". Article 6(3) was fundamental. "Knowledge" meant full conviction, "having reliable information". Cannot come our in full support of it.

 

China stated that they should not violate the principle of consensus.

 

France deeply regrets that just three delegations broke consensus.

 

 

Iran and DPR Korea say no to the ATT, so no consensus

The President finally arrived in his seat at 3.15pm. The room was so full that security had been called and no one else (including certain government delegations) was being admitted. At 3.25pm, based on advice from UN Security, the President called for civil society representatives to leave the room so that the government representatives could all get a seat. Compliance with his call was, though, fairly minimal so he was forced ten minutes later to ask everyone in the room to leave. 

 

When the 17th meeting of the Final Conference finally opened at 4.03pm, the President reiterated that the first decision would be to consider the draft decision to adopt the text of the treaty. Iran called for the floor for a point of order. Iran said the aims of an ATT had been "rendered out of reach" due to many legal flaws and loopholes. There was no reference to a prohibition on supply of arms to those who commit an act of aggression.  "Are we rewarding the aggressors by not prohibiting arms to them?" The right to have guns was included for the benefit of only one State while the inalienable right of peoples to self-determination had been completely ignored. The right of importers was subordinated to the rights of exporters. The flaws and loopholes are the product of a process that overlooked the rights of all States. Despite the flexibility by Iran, it objected to the adoption of the draft decision.

 

DPR Korea then asked for the floor. It also objected to the adoption of the draft decision. It said the text was not well balanced. The draft was "a risky draft" that could be abused by arms exporters.

 

Syria then took the floor to condemn the "bloody trade" in arms that were being supplied to "terrorists" and similarly objected to the adoption of the draft decision. It did not refer to the inalienable right of peoples under foreign occupation to self-determination. The treaty was an interference in the work of the Security Council. It did not include a ban on the supply of arms to "terrorist" armed groups and non-State actors. It did not include the crime of aggression.

 

The President tried again to get agreement, but Iran and DPR Korea raised their flags to block the adoption of the decision. The President suspended the meeting at 4.30pm to conduct additional consultations.

Will they, won't they?

A last-minute hitch is blocking the adoption of the UN Arms Trade Treaty. Apparently, Iran, North Korea, and Syria have indicated their intention to block the consensus, claiming that the rules of procedure require every State's acceptance of the accord. Furious attempts were under way to find a solution, with the President using every diplomatic tool at his disposal so that the Conference could agree on the text of the treaty today. Watch this space...

"Take it or leave it"

(c) Jesper Waldersten

So spoke the President yesterday. No tweaks, no changes, no shabby last-minute deals. Just "take it or leave it". Although there may be more twists and turns to come on the rollercoaster, we are hurtling downslope towards Final Destination 2. We sincerely hope that the decision is to take it. This is a very good treaty, a very good treaty indeed. Not perfect assuredly--which treaty ever is?--but a robust text that will genuinely make a difference.

Conference President Woolcott distributed his final Non Paper just before noon. The Drafting Committee (composed of Belarus, China, Cote d’Ivoire, France, Japan, Iraq, Malaysia, Morocco, Nigeria, Romania, Switzerland, the United Kingdom, Uruguay, and Trinidad and Tobago) met for a technical review of the text. In addition to pure drafting issues, two substantive issues were passed on to the President for possible action. He decided to amend his text on only one, a non-controversial issue related to provisional application of the treaty, and orally announced the language tweak to the Conference. 

The Final Text was made available later in the day, and translation into all the UN languages was ongoing the same evening, leaving States less than 24 hours to report to their capitals and come back for a decision today, Thursday 28 March.

Accordingly the final decision of this conference will take place at around 3pm Eastern Standard Time, and it will be the first item on the agenda. The formulation of the "decision of the conference" will read as follows:

The Final United Nations Conference on the Arms Trade Treaty adopts the text of the treaty, which is annexed to the present decision. 

No statements will be allowed prior to the decision. Only a State or States that wish to block the adoption of the treaty may intervene and speak up. So silence is golden. For, as Agnes de Mille once remarked, "No trumpets sound when the important decisions of our life are made. Destiny is made known silently."

 

Expect nothing. Live frugally on surprise.

Decision time is approaching. Yesterday rumour and counter-rumour prevailed over fact and fiction. With India clinging to its get-out clause for defence cooperation agreements, the UN Secretary-General apparently demarched New Delhi to call for some flexibility. Meanwhile, the sceptics were increasingly upset at how little of their concerns were reflected in the evolving text and it was feared they might vote it down (i.e. block consensus) on Thursday. On the other hand, Rule 33 of the Rules of Procedures says epigramatically that the conference should "take its decisions and consider the text by consensus". Whatever that means exactly is anyone's guess. Perhaps we should vote on an interpretation...?

 

Maybe this was Woolcott's strategy all along and we were just too naïve and blind to see it? Keep the United States happy, as he surely has--gotta love a special relationship!--and accept that Plan B (a vote in the UN General Assembly to adopt the text) was the only realistic way to get a meaningful treaty. If so, it's risky, but it may work. As Disraeli cautioned, though, "the most dangerous strategy is to jump a chasm in two leaps".

 

So we await the putative treaty text this morning with excitement and no little trepidation. "Fortune favours the brave" said Pliny the Elder. Unfortunately, his brave choice was to sail on to Pompeii where he died under a hail of volcanic ash from Mount Vesuvius. Let's console ourselves a tad then with Alexander Pope's dictum: "Blessed is he who expects nothing, for he shall never be disappointed."

Opportunity Knocks

Despite some critical statements in plenary yesterday (notably from India), we are moving slowly but reasonably surely towards the first global treaty to regulate the arms trade. Intensive negotiations behind the scenes were ongoing, notably to mitigate the effect of the French/Indian generalised "get out of my obligations free" clause, as well as to extend the provision on prohibitions to cover war crimes that involve the targeting of civilians or civilian objects in any situation of armed conflict and hopefully, also, indiscriminate attacks. Good work was similarly continuing to strengthen the provision on diversion and to beef up the article governing "export assessment", i.e. where a transfer was not automatically prohibited.

 

It could all still go pear-shaped, but mutter words like "historic" in dark corners and you would not be too far of the mark. Another 39 States are due to speak in plenary today while the other diplomatic activities are all a-flurry and a-fluster. Conference President Woolcott will then present the final draft--probably just about the final text--of the treaty tomorrow morning. Delegations will immediately seek instructions from capital: do we support; do we block; do we protest but not block? Should the treaty be adopted without fatal loopholes, the President and his team will merit all the plaudits they will surely receive.

 

So we will not risk jinxing the possibility of a meaningful agreement with some high-minded clarion call. We will just conclude this short entry by citing Alan H's view of a successful business trip and trust in the wisdom of the majority of the delegations present at this diplomatic conference to do what is right faced with the horrific consequences of unregulated global transfers of weapons...

Seizing this rare opportunity, I call over the air hostess and inform her that I could easily rid them of vast quantities of cumbersome beer and make this flight a lot safer for all concerned, to which she replies "Sorry sir, we don't serve drink until we are airborne." Obviously she mistook my perfectly understandable English for some alien code and I was forced to reduce my instruction to monosyllables, which was surprisingly met with compliance. Having secured some liquid refreshment, I released the hostages and returned to my seat.

 Yes, indeed, opportunity knocks.

The Second President's Non Paper: Still too much "Non"?

The second version of the President's "Non Paper" was distributed, as promised, on Friday evening. It had been billed unofficially as the high watermark of the Arms Trade Treaty negotiations, but, despite some advances, the text still fell significantly short of an acceptable global response to irresponsible transfers of conventional weapons. Indeed, many of the changes were largely cosmetic, more "legal scrub" than evidence of effective, progressive negotiations. Every one of the four remaining negotiating days will be needed to secure the ATT that is "owed to the victims" of armed violence and armed conflict.

 

Let's look at what has changed substantively. Parts and components, as well as ammunition/munitions, have been given enhanced status as separate provisions (new Articles 3 and 4, respectively). The amended formulation of the provision governing parts and components--"that are in a form which provides the capability to assemble"--while somewhat clumsy, appears to be an improvement on the earlier version ("to the extent necessary for"). With respect to ammunition/munitions, the wording is now encompasses that are "fired, launched or delivered by" the conventional arms covered in Article 2(1). This clarifies that bombs and shells are covered (although it remains highly questionable whether hand-grenades or landmines fall within the scope of the treaty).

 

The provision on general implementation of the treaty (now Article 5) includes a paragraph replacing the narrow and weak requirement for published control lists with explicit encouragement to States Parties to apply the treaty beyond the seven categories of the UN Register on Conventional Arms plus small arms and light weapons, along with a requirement that national definition of the arms within the scope of the treaty "not cover less" than the descriptions used in the UN Register "at the time of entry into force" of the ATT. Again, one may question the precision of the drafting but the intent is clearly to set a meaningful baseline regarding scope.

 

The provision on "prohibitions" has improved in two important respects but fallen short in one critical area. Parts and components and ammunition/munitions are now covered in what is now Article 6, a significant step forward. The formulation "for the purpose of" (the commission of genocide, crimes against humanity, war crimes) in paragraph 3, which negated any meaningful application of the provision, has been replaced with "has knowledge at the time of authorization that the arms or items would be used in". This is welcome.

 

Following an ill-judged Japanese proposal, however, the wording now covers "war crimes as defined by international agreements to which it is a Party, including grave breaches of the Geneva Conventions of 1949". Nothing on customary law, and  no absolute baseline on not supplying arms where they will be used for attacking civilians or civilian objects. So, a State that is not party to 1977 Additional Protocol I and/or Additional Protocol II  (this concerns India, Iran, Israel, Pakistan, and the USA, among others) but which joins the ATT is not automatically prohibited under this provision from exporting arms that it knows would be used to attack civilians in international or non-international armed conflict. How insane is that? We would be forced to rely on the woolly "overriding" language of Article 7. In addition, the language of Article 6 is scarcely conducive to it swiftly becoming part of the corpus of customary law, which would ultimately constrain States that did not ratify the ATT. People may not like lists of crimes, but sometimes they have their uses...  

 

Article 5(2)--the biggest loophole in the treaty--remained depressingly intact: "The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments. This Treaty shall not be cited as grounds for voiding contractual obligations under defence cooperation agreements concluded by States Parties to this Treaty." Discussions were ongoing under the able facilitation of Ambassador Higgie of New Zealand, although one State--which in most instances has proved a firm friend of the treaty--today introduced a terribly weak proposal to seek to address this. More on this next week... we hope... 

 

Article 5(2) and Article 6(3) must thus be the two primary battlegrounds for the last few days of the diplomatic conference. But who is up for the fight? As we head into the weekend, we are tempted to cite a rather unusual source, Dr Robert Schuller, as a clarion call to action.

"Commit yourself to a dream... Nobody who tries to do something but fails is a total failure. Why? Because he can always rest assured that he succeeded in life's most important battle--he defeated the fear of trying."

Foreplay... or just treading water?

(c) Jesper Waldersten

Aldous Huxley famously said that an intellectual is a person who has discovered something more interesting than sex. Clearly, he wasn't a participant in the Arms Trade Treaty negotiations. With the payoff of the first revision of the draft treaty yesterday, we were left smoking a cigarette and feeling slightly down today.

 

China, in remarking that the President's Non Paper was a good basis for a treaty adoption by consensus, justly noted that states have largely been repeating their old (and well known) positions. With only six working days left "we cannot continue like this". It again taunted the EU (seemingly its favourite new sport) with the claim that while statements by EU delegates were “all beautiful", they were "not beautiful enough" for China to change its position on adherence by "regional integration organisations". Egypt supported the Swiss proposal on prohibitions on transfer (formerly Article 3, now Article 4), which was welcome. The US repeated its opposition to ammunition being in the scope of the treaty, but sounding a little worn and tired these days on this issue.

 

That aside, states said little of great interest in the plenary in their feedback on the "Scrub plus". They are all waiting for the renewed climax that will arrive with the second revision of the treaty text tomorrow evening. It's going to be a long Friday night in New York...

 

The President scrubs up pretty well

Today, discussions in plenary were essentially devoted to criteria, implementation, and the final clauses (before time ran out). On criteria, a large number of states supported the proposal to replace the term 'overriding' (risk) with 'substantial' or 'clear'. In response, the United States stated that the "overriding" risk criteria "must" remain. It justified its position on the basis that the arms trade is, and can be, a legitimate activity, noting that all states buy and sell arms with the justification that this serves peace and security (e.g. by assisting a state to withstand aggression and tackle armed non-state actors, gangs, and drug traffickers). The US held that changing it to “substantial” would equate to an explicit statement that arms exports can never make a positive contribution to peace and security. As such, the US would be unable to join the ATT since it would depart from the balancing that was in line with its own domestic legislation.

 

A minority of important States, notably Russia, India, and Brazil, requested the deletion of the criteria of corruption and adverse impact on development in Article 4, paragraph 6 as being "not relevant" to the ATT.

On the final clauses, the European Union and a number of European states again argued strongly for the inclusion of a 'regional integration organisation' clause -- the so-called RIO clause -- stressing that membership of international organizations in international instruments is now accepted practice. Once again, China displayed its rapidly growing diplomatic skills, delivering another hard-nosed message to the European Union but with a degree of humour, noting with irony that China supports all integration organizations, "in fact China supports the Euro currency as it invests billions in it". China even remarked that it would support a RIO Clause if the EU were specifically excluded.

Of greater import, the President of the Conference distributed, as promised, the first of three revised drafts of the treaty, entitled the "President's Non Paper". It proved a little more than the infamous legal scrub that had been promised, as there were at least two (welcome) substantive changes:

• Munitions were added to the provision on ammunition, which is a very good step forward as it brings bombs and shells within the scope of the treaty; and
• Article 23 (Relations with States not party to this Treaty) was deleted. This is similarly welcome as the provision had implied that the ATT would generally only apply between States Parties. Therefore, to escape the reach of its provisions, a state that wished to misuse arms was almost encouraged not to ratify the treaty.

The Non Paper will be discussed tomorrow (Thursday) and Friday morning with a revised--and hopefully even stronger--draft to be issued by the President on Friday evening. The provisions on prohibited transfers (now Article 4(3)) and on other instruments/defence cooperation agreements are now the two biggest stumbling blocks to a meaningful treaty. The former needs strengthening, while the latter needs deleting. If these two goals could be met, states would have something worthy of the name to adopt next week. As Alexandre Dumas famously said, "The sum of all human wisdom is contained in these two words: Wait and Hope."

Slow, slow, quick-quick, slow

Day 2 of the diplomatic conference was a stop-start affair, with plenary discussions of scope, prohibited transfers, and criteria for denying other proposed transfers. It was mainly a restatement of previously announced positions, although Switzerland's proposals on Article 3 (prohibited transfers) and Article 4 (parameters) received considerable support from the floor.

 

In short, Switzerland and the co-sponsors of the proposal on Article 3 are seeking to bring the provision up to existing customary law, which prohibits a state from aiding or assisting another to violate international law. The draft text requires a level of intent ("for the purpose of"), which is not the standard under customary law on state responsibility or under international criminal law (which is one of awareness/knowledge). 

 

Moreover, the current text on war crimes in Article 3 would not specifically outlaw a transfer of weapons where those weapons would be used for attacks on civilians, despite this being international humanitarian law's most fundamental prohibition.

 

On scope, little substantive progress was made, with Canada asserting that the current draft of the provision was the best compromise that could be found. On parameters, the discussions highlighted once again--lest anyone be in any doubt--that it is easier to nail jelly to the wall than to define the word "overriding" in the context of Article 4. And that's only in English. The other UN languages have even more difficulty in finding an exact translation. The UK, which was quite progressive today, suggested replacing the word "overriding" with “clear” or ”substantial” (with regard to the level of risk).

 

Brazil and India, among others, stated that the criteria of corruption and developmental impact in Article 4, paragraph 6 were condescending. At least with respect to the criteria of development, they may well be right. For reference, Transparency International rates Brazil as 69th and India 94th in its Corruption Perceptions Index for 2012. Last is Somalia at number 174.

 

And finally... The ATT diplomatic world in New York was rocked to its core today when it was announced that Guy Pollard's blog "My Best Endeavours" had been forcibly removed from the UK Foreign and Commonwealth Office website. Shame. It was entertaining on so many levels. 

Once more into the breach? Or once more into the violation?

So, at last, we have negotiations underway once more. The UN Secretary-General formally opened the Diplomatic Conference at 10.50am on Day 1 and the Australian Ambassador Peter Woolcott was appointed by acclamation as the President of the Conference. In accepting his position, the President stated that although the last six years since the adoption of the GA Resolution 61/89 have been somehow productive, "Disappointment has to give way to determination, the world is ready for an ATT; it is time to finish the job." He stated that the July 2012 draft treaty text could prove valuable and asked the delegates to be engaged and focused so that the ATT could be made a reality.

 

(c) Jesper Waldersten

The UN Secretary-General then delivered his opening address, remarking that after a very long journey, the final destination is in sight. He said that the absence of international legal rules governing the arms trade "defies any explanation", noting that even tomatoes, T-shirts, or toys are better regulated. Among the many questions surrounding the problem of irresponsible arms transfers are: where are they produced; How have they been licensed; what standards have been applied to assess the legality of proposed transfers? The biggest question was, though, "what to do about it?" The Secretary-General concluded his opening address with the clarion call that the international community owed a treaty "to all the victims and those risking their lives to build peace".

 

The President of the Conference indicated that three revised drafts of the treaty would be produced during the UN Conference.  The first will be released on Wednesday, 20 March, seeking to improve the legal wording (the infamous and mystical "legal scrub") and correct inconsistencies in the draft text of 26 July 2012. The preparatory work for this will be conducted over the next three plenary sessions. A second revised draft will be circulated on Friday, 22 March, that will try to capture as many of the substantive suggestions of the delegates as possible. (Why this couldn't be attempted in the first draft is not quite clear.) The second revised draft will be discussed in the following four sessions of the plenary and a drafting committee will be appointed at the end of Tuesday, 26 March. The third, and theoretically final, draft will be distributed on Wednesday, 27 March. Questions remain, though, as to how and where an ATT is ultimately adopted. If consensus is not reached at the end of the negotiations, it is conceivable that the adoption of the text could be put to a vote (by simple majority, reputedly) at the UN General Assembly. A special session may be held the week following the end of the conference.

 

After the (commendably swift!) adoption of the Rule of Procedure and the agenda, more than 50 delegations expressed the desire to take the floor, despite the call from the President to refrain from general statements. This meant that discussions on the Preamble, Principles, and Goals & Objectives in the July 2012 draft only began  at 5pm.
 

There were many calls for the "principles" section to be either deleted or subsumed within the preamble (either or which makes much more sense than leaving them where they are). Switzerland, supported by several other states from the floor (e.g. Nigeria, Sweden, the United Kingdom), called for the term "armed violence" to be included in the preamble. India called for a clear reference of the need to eradicate the illicit trade in arms and to prevent transfers to non-state actors. There was a disagreement as to whether the twelfth preambular paragraph (on the "right" to adopt more stringent measures to control the arms trade) was the appropriate formulation.

In sum, a decent business-like start, at least from the Conference President. The issue of Palestine was not allowed to derail the negotiations as it did in July 2012. There is a decent road map to a treaty and the willingness of many, probably most, to achieve it. But many substantive (and procedural) obstacles remain. So when the blast of war blows in our ears, imitate the action of the tiger. Stiffen the sinews, summon up the blood. And for you diplomats in whose hands so many hopes abide, show us here the mettle of your pasture. Let us swear that you are worth your breeding, which we doubt not. At least, not yet.

Unfinished business? Arms Trade Treaty Diplomatic Conference (2nd and final round) starts Monday 18 March 2013 in New York

(c) Jesper Waldersten

The renewed United Nations Conference on the Arms Trade Treaty will open on 18 March 2013 for a total of nine days. Optimism is running high that despite the very short time frame and the unseemly collapse of negotiations in July 2012, an agreement can be secured this time around.

 

In his opening address to the July 2012 diplomatic conference, the UN Secretary-General said that it was ‘a disgrace’ that no multilateral treaty ‘of global scope’ addresses conventional arms transfers. He is absolutely right. But we don’t need an agreement for the sake of an agreement, we need an agreement that will work. This means that within a decade human rights abuses arising from the irresponsible transfer of weapons should have measurably reduced.

 

How can this be achieved? First and foremost by closing the main loopholes in the July 2012 text that will form the basis of negotiations. There are at least five in our view. 

1. First and foremost, Article 5, paragraph 2 as a whole, or at the very least the first sentence of the paragraph which states that ‘The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments’, and should be deleted. It is potentially the single biggest loophole in the entire treaty. It appears to allow a state party to simply contract out of its obligations by deciding, for example, that a state-to-state contract to sell or otherwise transfer conventional arms will override the obligations in Article 4 and potentially even Article 3 of the draft Arms Trade Treaty (ATT).
2. Second, Article 23 (Relations with States not party to this Treaty) should be deleted. The provision implies that the ATT would generally only apply between States Parties. Therefore, to escape the reach of its provisions, a state that wishes to misuse arms simply has to not ratify the treaty. 
3. Third, the wording of Article 3, paragraph 3 of the July 2012 text needs to be brought in line with customary law. This requires two changes. Customary law on state responsibility requires only knowledge that a proposed arms transfer would facilitate international crimes for complicity to be established. The draft provision requires specific intent, a far higher standard. The wording should be redrafted to meet the lower customary law standard.
4. Fourth, the other change to Article 3, paragraph 3 concerns war crimes. Under customary law, war crimes committed in a non-international armed conflict include indiscriminate attacks (not just intentional attacks against civilians but also those that cause excessive civilian harm). Common Article 3 of the 1949 Geneva Conventions — to which the July 2012 text specifically refers — is limited to mistreatment of persons in the power of a party to the conflict (i.e. abuse of internees, detainees, or prisoners). The conduct of hostilities in an armed conflict is more comprehensively regulated under international custom and the wording of the draft provision needs to reflect this.
5. Fifth, the term ‘overriding’ in Article 4, paragraph 5, should be replaced to ensure that the standard does not depend on interpreting an ill-defined notion of ‘peace and security’. Alternatively, peace and security should be explicitly de-linked from the determination that a proposed transfer that would likely be used for serious violations of human rights or humanitarian law should not be authorised.

To suggest that the stakes are high for this diplomatic conference is almost trite. The United Nations disarmament machinery is once more on trial (and the jury is unlikely to be forgiving its trespasses). Moreover, certain states appear willing to sacrifice principle in order to secure an agreement, any agreement. But if this is not to amount to Neville Chamberlain in 1938 brandishing a piece of paper on his return from Munich and proclaiming ‘peace in our time’ they will need to be given some backbone (and warned of the political consequences of lack of courage). Civil society will need to be especially vigilant and effective in this regard. As Augustus Hare famously remarked, ‘Half the failures off this world arise from pulling in one’s horse as it is leaping.’ Let us not make that mistake. Yes, friends, the stakes are high.