Friday, March 22, 2013

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."

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