Tuesday, March 19, 2013

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. 

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