Friday, July 15, 2011

Day 5 of the Third PrepCom - National Implementation

The final day of the prepcom was, overall, more positive than the previous day, with the US rowing back slightly from its somewhat apocolapytic view of the status of the preliminary discussions. Consensus will remain an elusive beast, however, based on the persistent objections of a (relatively small but vociferous) number of States.

The EU stated that the Chair's paper is a solid basis on which to build in 2012. Even if some elements will not statisfy all delegations, that is normal. More work clearly needs to be done but the structure seems close to what could be the eventual treaty. The ATT should include munitions and ammunition. In their view, the provision on ‘technology structure’ covers ‘manufacture’. They welcome the clause on brokering. The clause on victim assistance should not go further than what is stated in the paper.

(c) Jesper Waldersten

 Italy called for more work on definitions. Sports and hunting weapons should included be in the ATT, but the focus should be on military weapons, including SALW. They don’t see it appropriate to include victim assistance in the core of the text but only in the preamble.
Chile said victim assistance should be only in the preamble. It called for greater precision on the extraterritorial applicability of the treaty.
Denmark said that it should be assessed carefully which provisions apply to what activities, e.g. criteria are only relevant for export, but not for import, and record-keeping must be linked to transfer authorization.

Germany said a more detailed list of arms should be included in an annex that would be easily amendable. SALW should be included, as well as munitions and ammunition.
Cuba stated that there were several points that were not acceptable to Cuba. Criteria, for example, can be easily manipulated for political reasons. They also want a clause on prohibition of transfers to n on-State actors. Information provision can only be voluntary; the treaty cannot put in danger the national security of a State.

France liked the method of work of the Chair as it allowed for the consideration of all the views of the States. It is also a more "courageous" approach. The text submitted seems coherent. No big surprise should appear now, and it is a good thing for all delegations. What is now the way forward? We are now in between phases of about a year before the Diplomatic Conference. We should then try to establish for the first day of the 2012 conference the best possible basis for how to: 1) take off all the elements unnecessary in the treaty (e.g. victim assistance, even if it should stay in the preamble). 2) clarify the obligations of States (ambiguities remains, such as the concrete consequences linked to risk assessment in transferring weapon); and 3) start to write the text in a ‘treaty’ language.
The UK still calls for a robust treaty with the highest possible standards. The text seems to go on this direction.
The US can support the statement of the EU, UK, and France except for the ammunition provision. The paper provides a good basis and gives elements in moving towards negotiation. Consensus cannot be achieved in all the ideas expressed in the paper. We need to focus our attention on the essential elements to be included in the treaty.
Belgium want to add a small provision in the preamble that could send a positive signal with regard to the problem of child soldiers. The preamble should refer to gender -ased violence and violence against children.

Uruguay in the name of Caribbean, Central and South American States stated that the treaty should include SALW, ammunition, and munitions to avoid loopholes. Clarification needs to be done with regard to criteria and exporting States. They want to replace ‘serious’ violations of human rights law by ‘gross and systematic’ violations. International assistance is a key element. Final provisions should not allow reservations, at least on the scope. Review conference should be given a mandate to eventually broaden the scope. Settlement of disputes should include a reference to Article 33 of the UN Charter to allow a wide range of means of dispute settlements.
Russia said that there was progress if by that we mean a better understanding of the positions of the States. However, the prepcom has not been successful in transferring a balanced proposal to the General Assembly. Instead the Chair proposed a working paper that renders the different views expressed. It is the personal understanding of the Chair of how a treaty could look. Russia does not know if it can become the basis of negotiations. Consensus is very unlikely as the text stands. We don’t have a clear understanding of what the treaty could bring and what its aims are. For Russia, the main aim of a possible document is to counter the transfer of arms to the illicit market.
The Netherlands said that the Chair's text is a good basis for further work. Ammunition and munitions should be included (to include hand grenades, for example). It is a regulation treaty and not a treaty that would ban the arms trade. Denial transfers cannot be negotiated and are a matter of national sovereignty. No provision should be drafted concerning denial transfers. NGOs must be able to participate in the Review Conference and it should be foreseen in the treaty.

Costa Rica said that the objective of the treaty must be to realize what the General Assembly stated, i.e. to contribute to a more peaceful world and stability between nations and reduce human suffering. It won’t suppress wars but it can limit the flow of arms that fuels armed conflicts. Costa Rica is generally satisfied with the text. They also want an inclusion in the criteria regarding risk of transfer to non-State actors.

Switzerland welcomed the inclusion of SALW in the scope of the treaty. They also welcome the inclusion of explosives, such as hand grenades. Some terms should be better defined: for example, what is a military vehicle? Switzerland is pleased to see criteria on peace and security, and serious violations of IHL and human rights. The issue of poverty reduction is also a good criteria, as well as corruption. A reference to the risk of the transfer of arms to the civilian population should be included. 20 years should be the minimum time for record-keeping.
Colombia said that the criteria as drafted can still be subjective and political. It is necessary to refine the wording to avoid that at a maximum. They want inclusion of a provision on non-State actors. Victim assistance should only be in the preamble. Review conferences must be able to amend the treaty.

Sweden sees the paper as a list of issues that need to be tackled during the diplomatic conference and not as a basis of a treaty per se. The paper is a road map and not a text to be negotiated.
Spain wishes a robust and simple treaty to regulate the arms trade and end illicit arms trafficking Provisions will need to be better refined, but still it is a good basis for discussion.

Iran said that the text is not a basis for negotiation. Despite positive changes, it does not include many issues which are essential to Iran. It lacks clarity and vision. Terms are vague and ill defined, such as ‘irresponsible’ trade, which will raise a lot of interpretation issues. Since 85% of the arms trade is dominated by a handful of States, the entry into force should be conditioned by the ratifications of the 15 exporting countries. It asked for the submission of a rolling text.

Thursday, July 14, 2011

Day Four of the Third Prepcom

The Chair opened day four of the third Prepcom by announcing that he was issuing a new chair's text. This is the first complete draft of a possible Arms Trade Treaty that he has elaborated. Based on the discussions that ensued it is clear that several major arms exporters/importers (e.g. Egypt, India, Pakistan, and the US) do not support the general thrust of his current text. Some tough discussions and negotiations lie ahead.

Canada wanted a new clause allowing for legitimate civilian uses of small arms, including sport and hunting, in the principles section. On any right to "acquire", Canada wanted this deleted from the treaty. It also wanted sporting and hunting weapons excluded from the scope of the treaty. It had concerns about the inclusion of ammunition in the treaty.

On Annex A (definitions), there are two different definitions of "transfer". It called for the removal of the word "transport". It also sought clarification on the definition of brokering, including whether brokers should be regulated in the same way as exporters. It also had concerns about the extraterritorial application of national law with respect to brokering.

(c) Jesper Waldersten

Algeria sought clarification on whether the Chair's paper would be revised during the week. It also wanted a paper including all the proposals made by different delegations. This would help the Diplomatic Conference, it said. How does the Chair see the status of his paper?

Egypt wanted time to review the document.

Mexico stated that there should not be exceptions based on intended use as it is not a disarmament treaty. Guns used for recreation are some of the most often used for transnational organised crime. Excluding them would leave a big gap in the treaty.

Senegal stated that sanctions should be in place for violations of the treaty. The ATT should cover all conventional weapons, including ammunition.

The Republic of Korea stated that addressing brokering was a good approach, as set out in the Chair's new paper. It wanted the role of the ISU to include maintaining a database of reports. The treaty's scope should be flexible in order to capture new weapon and technologies. It did not think that victim assistance was relevant to the treaty but the wording "may" left sufficient flexibility in this issue.

Sweden thought the definition of transfer should be generic and preferred the one in Annex A to what was included in the section on scope.

India wanted references to non-State actors included. It did not find the document balanced and noted a wide range of views among delegations.

Uruguay called for a stronger provision on victim assistance to be included.

Mexico wanted to replace "serious" violations of human rights law with "grave and systematic" violations. On record-keeping, Mexico wanted records kept for 20 rather than 10 years.

The US stated that the draft does not move States closer to an agreement. This is a treaty about requiring States to have an assessment before authorising transfers. "I do not see how this text moves our discussion forward."

Pakistan stated that it saw the latest draft with disappointment. None of its proposals was contained in the latest draft. "What then is the purpose of this exercise"? It encouraged the Chair to begin in earnest efforts to find a consensus.

Argentina stated brokering should be covered by the treaty.

Ghana stated that that the humanitarian imperative should be kept in view.

The UK stated that the text was a platform for the drafting stage.


NGO presentations

Jeff Abramson, the new coordinator of the ControlArms Secretariat, gave the first presentation. He called for a broad definition of transfer to be included in the treaty. Second, he said the State Party reports should be made public.

Carole Engome of IANSA Women's Network called for the inclusion of a reference to gender-based violence in the ATT. She applauded the reference in the preamble of the Chair's text.

Suela Lala, lawyer and survivor of firearms injury, from Albania, called for a comprehensive framework for international cooperation and assistance.

Felipe Michelini, a legislator from Uruguay from Parliamentarians for Global Action, pledged that they would work towards rapid ratification of the future ATT and the adoption of detail legislation permitting its implementation.

Wayne Lapierre of the US National Rifle Association said that the right to bear arms was "self-evident". Those working on the ATT said trust us, but they have shown themselves unworthy of that trust. Only "solution" is not to include civilian firearms in the treaty. The treaty is the infringement of US citizens constitutional freedoms.

Ted Rowe, World Forum on the Future of Sports Shooting Activities, stated that more than 60% of all firearms are legally owned by civilians. Civilian firearms should not be included in the treaty. Only military firearms (i.e. those capable of fully automatic fire) should be covered. On ammunition, any marking and tracing is not feasible because of the difficulties in record keeping.

Allen Young of Defence Small Arms Advisory Council stated there is an obvious difference between a arms trade treaty and a small arms control treaty.

Resumption of preparatory committee

Egypt stated that changes to the Chair's paper were limited. It presents a particular, single model of an ATT. He claimed that there was not yet a set of international standards outlined in the Chair's paper. The text does not deal with regional military imbalances. There is nothing on following up on lack of compliance. Egypt does not like the terms used in the scope section, which it said are not clear, and do not follow those in the UN Register.

On criteria, the language needs to be tightened up. The terminology needs to avoid guesswork at national level. There needs to be oversight of respect for non-discrimination over and above the "potential violator". It would like to see a totally independent secretariat. There is a "sovereign right" to obtain arms for self-defence. The current text lacks any incentive for non-exporting States to adhere to it.

Guatemala stated that all SALW and ammunition should be covered by the treaty. In Guatemala, many weapons seized from organised crime are from hunting and sport. It wanted an independent ISU.

Peru said avoiding diversion of arms was a key objective. On scope, it was pleased to see that SALW and ammunition were included and did not want it to be possible to make reservations to the scope of the treaty.

Norway stated that references to illicit activities were somewhat superfluous; the treaty was also to prevent irresponsible transfer. Armed violence should be referred to in the preamble. There is no obligation to export arms and no right to import them. The dispute settlement provision on transfer denials might contradict the treaty. There is certain ambiguity on terminology, e.g. "transfer". Norway still believes that victim assistance should be included in the treaty. There is no need for a link between the arms export and the victim; it is to reiterate the rights of victims to assistance, in accordance with applicable human rights law. It regretted there was no inclusion of marking and tracing of weapons.

Brazil stated a greater deal of realism was a mark of this week's negotiations. Brazil still had concern about some of the elements included. It wanted deletion of reference in the preamble to excessive stockpiles. It wanted a new paragraph setting out the right to development through acquisition of technology and equipment. It did not want to see exclusions for certain weapons.

On criteria, some are still too vague. It opposed language on socio-economic development and questioned language on prolonging or provoking instability. Brazil would prefer either voluntary reporting or a more limited scope if reporting was compulsory. On amendments, Brazil wanted adoption by consensus.

Nigeria called for a new criterion on armed violence.

Trinidad and Tobago also wanted a reference in the preamble to armed violence. It stressed the need to include ammunition in the scope of the treaty. It wanted to see a prohibition on transfers to non-state actors.

Malawi stated that on criteria, the language on corruption was not clear. On enforcement, extradition for prosecution should be a possibility.

Saudi Arabia stated that it supported the concerns raised by Egypt. On dispute settlement, what if bilateral negotiations don't resolve the issue?

Algeria stated the Chair's text cannot constitute the basis for negotiations. It asked for an additional prepcom meeting to discuss the draft.

Certain statements are available in full at:

Wednesday, July 13, 2011

Day 3 of the Third PrepCom - National Implementation (contd.)


Prefers Article 18 of the Vienna Convention on the Law of Treaties to what is in the Chair’s proposal. For entry into force, it seems there is general agreement on setting the number of ratifications at 30. As for withdrawal, the text of the provision should be as clear as possible. The new provision could be drafted as including extraordinary circumstances, supreme national interest, etc., to justify the withdrawal. Relating to dispute settlement, it suggested using the corresponding provision in the Convention on Cluster Munitions. It also called for a provision on relations with States not party.

Joined the Swiss proposal on import and export. It wished to have stronger language on information exchange. On “Jurisdiction AND control”, it wanted to delete the word control altogether. It supported 30 ratifications for entry into force. With regard to reservations, it wanted either to include a clause that says no reservation or to have one that gives more guidance on who decides if a reservation is incompatible with treaty (maybe the Assembly of the States Parties). Practice shows that objections to reservations are often unclear and are a delicate matter for states. Reference to arbitration and the International Court of Justice should be included in the provision on the settlement of disputes.

Whishes 60 as a number for ratifications necessary for the entry into force. On withdrawal, there should not be any conditions as it is a sovereign right. On reservations, it would be better to say which organ or entity could declare that a reservation is incompatible with the object and purpose of the treaty. As for settlement of disputes, it seems that the provision only deals with the first stage of a dispute between States Parties and more should be added on judicial means of settlement.

Supported 30 as the number of ratifications to trigger entry into force. Considers that the ATT should not allow reservations, otherwise a reserve to the clause of transfer, criteria, etc. would necessarily be a means to avoid the application of the treaty. There should also be a provision on relations with States not party.
Papua New Guinea

Wants to include SALW in the treaty. There should be a regionally based reporting mechanism for reporting and it thinks that assistance will be needed for record-keeping. The mechanism should only have a repository and secretarial role. International assistance will be needed to implement the treaty.

The purpose of the Assembly and the review conference seems to be the same. It should be clearly stipulated what are their precise roles and functions. The procedures of such mechanisms should be established in the treaty itself. Relationship between States Parties and State not party should also be examined.
Trinidad and Tobago

They are ok with the reservations clause as it is the same as the VCLT and part of customary law.  The review conference should also allow States not party and other entities to attend as observers. The provision on dispute settlement should be more elaborated, and a provision on more diplomatic settlement and then traditional judicial means should be included. Inspiration could be drawn from environmental law regime (e.g. the Kyoto protocol), which have original provisions on means of dispute settlement.

Russia wants more than 30 ratifications, and believes that 60 is a better level for entry into force. Anyway, all of this is hypothetical, as it still doesn’t agree on the scope and parameters.
The EU

To allow the swift entry into force of the treaty the number of necessary ratifications should be fixed at a reasonable level. Regular Assemblies of States Parties and review conferences are a good tool for the treaty.

Reservation on certain types of weapons cause great difficulties so reservations should not be allowed.

Denial of transfers should only be based on treaty provisions and not political reasons. So the terms ‘for any other reasons’ is not acceptable to Iran as gives too much leeway to political abuse. Reports should not contain sensitive information related to national security. Law enforcement should not be dealt with at the international but only at the national level. In principle, brokering should not be included in the ATT. Corruption is already dealt with in other instruments and so it should not be included in the ATT. The implementation unit, as presented by the ODA, is not supported by Iran, as it believes that it is a matter of national concern and should be dealt with at the national level.
United Arab Emirates

60 ratifications should be the number required. On reservations, they support the provision as written. Assemblies of States Parties are a good idea. They believe that the limits of the mechanism and their functions should also be determined. A clause which clarifies the relationship with States not party should be included.

The text is only a reference as we are not there yet. Assembly of States Parties should facilitate cooperation between States Parties, while review and implementation should be dealt with by the review conference. For amendments and call for an assembly a minimum number of states should be requested (e.g. 30).

Ok with 30 ratifications.  Colombia has doubts as to the need for an assembly of States Parties and a review conference. There might be a cross-over in functions, so the tasks of the two should be clearly defined. Or we should maybe only have one type of organ, with all functions (review, reporting and implementation). As to the relationship between States Parties and States not party, the ATT should include the important principle stating that a State Party must always respect the provisions of the treaty in transferring the arms whether or not the recipient State is a party to the treaty or not.  
New Zealand

The text of the ATT could include a provision specifying which clause could not be object of a reservation. They believe that 30 is a reasonable level for entry into force.

60 ratifications seems a reasonable level for Australia for entry into force.
United States

We should not get into treaty text as we are not yet there. Entry into force provision: trying to set down a particular set of countries that should be party before the treaty goes into force should not be a path and the US does not want that either. As for the object of the treaty with regard to the reservation clause, this should be very clear. Two elements are clear: a large number of states should be part of the treaty so 30 is too low. Then you also want to have states that are particularly interested States Party to the treaty, but how to know which those are. In general, we use the criteria of value of exports but those vary with time. We should wait for the actual negotiations before getting into the details of the final provisions.

Cuba does not see how the treaty can be effective if major exporting countries are not party to it.

Some states wishes to have 60, 70 ratifications for entry into force arguing that that would ease universal adherence, However, Norway underlines that there is no contradiction between universal adherence and low number of ratifications. Indeed the most universally ratified treaties are the Geneva Conventions and there were only 2 ratifications required.

Clear functions of two bodies should be defined. Are ok with 30 ratifications. Should mention ratification, approval and accession. States should also provide explanations when they withdraw. ATT should also plan how many States Parties are necessary for amendments.

The question of scope and criteria are intermingled with implementation. So far it is not known what the aim of the treaty is. For some it is a disarmament treaty, for other it is an instrument to fight illicit arms trade, for other only a regulation treaty. It is time to assess the aim of the treaty and the right of States to acquire arms to defend their sovereignty should be included. Criteria should be free from polarization. Reporting must be voluntary. What kind of information will contain the reports? What about military alliances? If the aim is universal participation, in terms of ratifications, a high number must be met. Major exporters must be included otherwise it won’t be useful. Reservations as well as denunciation are sovereign rights of States.
The Netherlands

Exporting countries are not more important that other States in terms of ratifications. Indeed, the ATT will try to deal not with the numerous licit exportations which exporting States do all the time, but will try to address the few problematic ones. Hence, every country is concerned.

The proliferation of arms is a major concern. Criminals today can have very easy access to sophisticated armaments which sometimes contribute to fuel violence almost to a war-like degree. The ATT is necessary as we face now not a regional problem, but a worldwide one. International police cooperation is crucial, for example in relation to information exchange with regard to the implementation of the treaty. International police cooperation and how to best put it in place should be included in the ATT.

Tuesday, July 12, 2011

Day 2 of the Third PrepCom - National Implementation

Philippines – To effectively implement the treaty there is a need to include reference to international cooperation and the right to self-defence. The distinction between importing and exporting States is important. It also stressed the importance of the principles of sovereignty and territorial integrity.
Singapore – Regarding transit, not every State has the capacity to implement all the provisions. It thought they should strive for a treaty that is not too complex and onerous.

Chile called for language to be avoided such as “abuse of power”, which are difficult to understand in a legal instrument.

Malaysia – A potential ATT must be objective and balanced. Linkages to issues such as human rights, poverty, and corruption (which is not measurable and is too broad) are not helpful. Linking these concepts to security matters would unduly burden the subject . The proposal on transfer denials is too ambitious and burdensome, and the proposal on denial notification should be deleted as it affects bilateral relationships. The minimum period of keeping records should be five years, while the decision to share information should be the prerogative of each State.
(c)Jesper Waldersten

The EU and others stated that the guiding principles should be in the preamble, while treaty application remains a national responsibility and the assessment process to be conducted at national level. Importing States should put in place measures to monitor and control transfers of arms and ensure compliance with binding legal obligations. Further details of these measures should be decided at the national level. States Parties should address corruption and money laundering (including by reference to obligations under other instruments)

Russian Federation said that the measures to be implemented are far from being agreed. On national systems, it lacks the key word of control: “national control”. Domestic arms circulation should not be taken into account.

Jamaica stated that implementation must occur at a national level and supported by action at the international level. States Parties should be free to put in place additional measures. Transit States should be notified prior to entry into ports. Jamaica supports the section on transfer denials (which would contribute to transparency). Reporting and record-keeping are vital aspects, and annual reporting should be mandatory. An ISU is important, and the body should be independent, flexible and robust. The ISU would assist with implementation, including identifying implementation gaps at national level, and should be a mechanism for facilitating international cooperation and assistance, and serve as a repository of annual reports.
France (on behalf of the P5) said that the ATT is not a disarmament treaty, and should not affect the legitimate arms trade or the right to self-defence. Any decision to transfer arms is an exercise in national sovereignty, and this must be the core principle of the ATT. An effective ATT would help curb the illicit trade in conventional weapons that is undermining security and prosperity, and all States share responsibilities to ensure that weapons are not diverted to illicit purposes or activities. The ATT should be simple, short, and easy to implement. Domestic implementation in accordance with national legislation and regulations in line with ATT obligations would be the most practical way to address implementation.
Canada said that implementation provisions should be easy, short and simple. It felt that the opening paragraph in paper was sufficient for this. States Parties should retain flexibility, and details in the treaty on implementation should be realistic, since many States may not have capacity/resources to fulfil an ambitious implementation provision.

Canada cannot support a system of controls where imports would be treated in the same way as exports. Information sharing is necessary but much information is confidential (national security, commercial-in-confidence, or privacy considerations). Canada is concerned with  any proposed obligation to enforce measures on citizens regardless of physical location (concerns with extra-territorial application of State laws), and would urge caution in this regard.

Indonesia said that scope/criteria should be discussed at this meeting, and that the ATT should not undermine primary responsibility of States in controlling export/import/transfer of arms. The ATT should not hinder or generate political restrictions for developing countries. National legislative/administrative measures necessary to implement ATT provisions should be required, but implementation is inseparable from international cooperation and assistance. Indonesia is concerned with references to poverty reduction, socio-economic development, and corruption (which should be regulated by other instruments). Denial notifications should be considered under the section dealing with consultation; there should be a mechanisms for States to express their views regarding denials.

Sweden – dispute settlement mechanism should be related to implementation but not in relation to sovereign transfer control decisions (which would introduce a supernational element that has not been entertained by anyone). An ISU need not deal with implementation assistance, it would be more secretariat functions, and perhaps serve as a clearing house for implementation assistance.
Germany aligned itself with the EU statement. It felt that only brokering of unauthorised transactions should be criminalised. Arms manufacturers may need to undertake brokering activities, and it was unrealistic to require a licence for this. The ATT should not create blacklists for previously denied importers/exporters: each application must be addressed on its merits.
USA said that the national authority should use new technology, such as tracking by electronic means. Transit (recording all transfers across its territory) is unworkable in practice. License and export denials should not be covered in the ATT in the reporting mechanism. The reporting regime should be tailored to its goals and objectives. The US supports an Implementation Support Unit (ISU) as long as it is small and independent and support it financially.

Grenada was in favour of an independent secretariat to support the implementation of the treaty.

South Africare. export, it was concerned about the terms used: “transparent and predictable”. Transparent is a vague concept and predictable is a bit ambiguous. On para. 4 of the Chair's text, a State cannot guarantee non-diversion of  the arms once they have been exported. On enforcement: brokering (agents) and corruption (State officials) should be kept separate.

The Netherlandssaid the term “political abuse” was vague, and might suggest there was an obligation to supply.

IndiaThe language on implementation and application section may raise constitutional issues in many countries. The language should be short and general. India questions the relevance of using the term “National authority”. On validation/authorisation on arms transfer, not every part of the transfer chain is under the control of the exporting States. India questions the need to include a section on transfer denial.

Mexico – On the criminalisation of conduct, Mexico stresses the need to include obligation to try or extradite the persons violating the treaty.

Iran – The ATT should ensure a legal arms trade, and the treaty should be consistent with the UN Charter, and fully respect the sovereign and inherent right to manufacture and conventional arms for self-defence and security needs in accordance with Article 51. The ATT must be balanced in terms of rights and responsibilities of all arms exporting and importing States, and must prevent political abuse of its provisions. An ATT must ensure that refusal can only be undertaken on the basis of treaty provisions, and not for ‘any other reasons’.  The ATT must also prevent parties from taking steps to unduly restrict the security rights, needs, and interests of other States Parties. It must also ensure that international transfers for civil purposes will not be restricted or denied as a result of implementation. An ATT will not work if exporters do not join. An ATT will not assist gradual disarmament.
Venezuela – the section on implementation may be more relevant to a disarmament treaty than to a trade treaty. An ATT cannot be considered a disarmament instrument, and the submission of information within the framework of transparency must be done on the basis of a voluntary commitment. Treaty provisions should not pre-judge the right to self-defence, and more consideration needs to be given to an ISU (which States will be represented, will it be within the structure of the DDA or another structure, what will the range of responsibilities be)? Venezuela would not support an ATT being used as a restriction on the legal arms trade between countries. The treaty must preserve States’ rights to manufacture/import/export arms.
Ireland – the scope of the ATT could impose administrative challenges but effective control of these activities will be essential to preventing diversion to illicit purposes. Reporting is a key element, therefore Ireland supports the adoption of the highest feasible level of transparency (noting administrative realities and issues of confidentiality). It has concerns about the provisions on transfer denials.
Algeria – the implementation paper may need some re-organisation. Implementation must respect national sovereignty, and the list of national contact points should be replaced with a support group. The status of the ISU must be defined, and whether it will report to the UN (Algeria hopes it would). It should be funded by States Parties, and the scope and size should be simplified at the start.
Zimbabwe – ATT should uphold States’ rights to arms themselves and engage in arms trade without unnecessary encumbrances. The language should be clear to avoid the ATT being used as an instrument to interfere the internal affairs of other States (e.g. effecting unconstitutional regime change), linkages to human rights should be avoided, since such concepts may permit ATT to be used to deny States to exercise their rights to obtain arms for self-defence. Transparency provisions conflict with confidentiality concerns.
Israel – denial provisions are excessive (confidentiality concerns), while some reporting requirements (existing or new national legislation and procedures) are easy and simple. Other reporting requirements should be carefully considered, taking into account confidentiality concerns. Too-detailed reporting will be burdensome, contentious, and create report-fatigue. The ISU’s main function should be provision of professional assistance to countries which require and request such assistance, and the ISU’s size should fit its designated functions and take into account financial constraints.
Egypt – ATT should not be as focused on national implementation, this would create inconsistencies and subjectivity. National implementation measures should implement the international reference points set out in the ATT. There is limited potential for universality if only exporting States are required to implement provisions, and the paper does not address production and stockpiling. Most States are already dealing with brokering, so the ATT should focus on illicit brokering only, and an  international instrument already covers corruption, so the ATT is not the framework to address corruption. Reporting should cover export licensing as well as actual transfers, and should build on existing models (UNCAR) but be more developed and detailed. Reporting denials is necessary in order to allow States to assess effectiveness of ATT, and serves as a safety  measure against unjustified denials. An ISU can play a role in checking for unjustified denials, and a legal assistance role can be assigned to ISU along with other roles mentioned in the paper.
UNODA – clarifying different options for implementation support, generally three types: (1) stand-alone independent organisations (eg OPCW and CTBTO), seen as suitable to undertake complex and technical functions (compliance verification, fact-finding, inspection) and would be funded by States Parties only and will need to be built up (advantage is direct control, insulation from UN, high visibility to the treaty; disadvantage is overhead costs and potential politicisation). (2) ISUs (BTWC, CCW, APMBC) are embedded in established inter-governmental organisations (e.g. the UN or GICHD). The advantage is an existing regulatory framework, direct control by States Parties, cost-effective and synergies with relevant expertise and resources, while the disadvantage is potential politicisation. Secretariat functions performed by the UN (e.g. SALW POA, UNCAR), may be suitable for instruments with near-universal membership, funded through UN regular budget. The advantages include use of an existing regulatory framework, benefits from UN capacity and experience, lowest costs, synergies with UN systems. The disadvantages are low visibility, budget not controlled by ATT experts, a perception that it is prone to politicisation. Appropriate modalities will depend on the tasks assigned in the ATT, and the mandate should be clear.
Member States statements may be found in the UN ATT PrepCom website.

Monday, July 11, 2011

First Day of the Third PrepCom

Overview of the day's discussions

The President's recently circulated paper on national implementation was the subject of discussion on Day 1 of the Third PrepCom.

Barbados on behalf CARICOM want to see provision made for penal sanctions for those who violate the future treaty. They support strong implementation mechanisms.

The EU supports the general approach taken in the President's paper. The implementation of the treaty should remain a national responsibility. No obligations should be imposed with respect to non-State actors. Trans-shipment and brokering should also be included in the implementation section. The EU also stressed the importance of the transparency provision. Obligations should be imposed to regularly report on the respect and implementation of the treaty.

Australia noted that the treaty is not only for exporter States: all States must take the necessary measures to implement the treaty. Functional provisions on implementation are crucial to the success of the treaty.

The United States said that it would be a mistaken assumption that the ATT could solve problems that are beyond the scope. It is not an arms control treaty or a treaty that bans certain activities. It is a regulation of a legitimate activity.

The US noted, however, that it has never been an obligation upon any State to sell arms to certain other States. There is no right to receive arms.

An effective ATT would act as an incentive to push States to implement a national mechanism for implementation. The ATT will not be able to ban certain activities from happening but will make it more difficult for illicit brokering or actors to acquire arms.

The US stated that there should not be a provision of compensation for victims.

The Russian Federation did not believe that there was a clear and common understanding of an ATT, therefore they were building the roof of a house without the necessary foundations. They felt that discussions on implementation should only take place when the objectives of the treaty had been agreed, otherwise there would be an overly abstract discussion.

Norway stated that transparency would build confidence in the treaty. The ATT should be seen as the floor not the ceiling.

Trinidad and Tobago stressed the importance of the duty to cooperate. It wanted to see criminal provisions and criminalization of conduct prohibited in the treaty included (such as illicit brokering activities that take place under the jurisdiction or control of a State Party).

Japan called for a strict national export control mechanism. Japan can subscribe in principle to what the Chair's paper proposed. Transparency measures, such as reporting, are very important. An effective mechanism for information exchange should be provided, such as for example in meetings of States Parties. Japan wondered why brokering and corruption are in the implementation section.

Mexico felt that the ATT should allow for national higher standards. Respect for human rights and IHL should be a fundamental pillar for the treaty. The treaty should avoid to include terms such as ‘political abuse’ which can only undermine the strength of the treaty.  International cooperation and assistance will be a key component of the treaty. Cooperation in national implementation, taking into account capacities of different States, is also important.

Tanzania supported the provisions on international cooperation and assistance and on victim assistance in the implementation section.

China said that the sovereign right to trade in arms was the future of the ATT. Consensus was essential.  The UN register should inspire the ATT. Transparency was also an essential element.

The UK said that implementation translates words into actions. It agrees with the thrust of the Chair’s paper. The National Authority is fully supported. A control list will also be important. On transfer denials, they see the logic but feel it is not workable at this stage.

Regular reporting will be very valuable. International collaboration should run throughout this part of the treaty.  The implementation support unit with a small area of action, created by States to serve States, should be the way forward.

Cuba said that several elements in the Chair's paper were not acceptable to Cuba, but they believe that the text will motivate consensus. Any future ATT must not be discriminatory or be based on political motivations if it is to be acceptable to Cuba. It called for respect for the right to self-defense.

Argentina said that implementation should be a national responsibility, and the ATT should be in accordance with IHL and human rights.

France said that the ATT had two main aims: to regulate international trade and also illicit transfers. Each State must put in place a national implementation system for the treaty. Common elements had to be defined but latitude had to be left to national bodies. Cooperation  and information exchange on the control mechanisms was important. The Chair's paper was a good basis. It was also pleased with the provision on judicial cooperation on criminal law.

It did not think linking brokering and corruption was appropriate. One was legal, while corruption was not. It did not support an obligation to notify of transfer denials. This could impede good relations between States. A secretariat could effectively assist in organising meetings of States Parties and circulating State reports.

Israel said that implementation is the responsibility of States. Record-keeping and reporting needs careful analysis. A mechanism which would be excessive and which could touch on sensitive political issues should be avoided.

Switzerland welcomed the content of the Chair's paper. It supports a strong ATT and an ambitious instrument. The text refers to jurisdiction and control whereas it should say or

Pakistan said that consensus has not been reached on key aspects of the treaty, its scope and criteria in particular. This should be done before talking about implementation and final provisions issues.

Germany cannot conceive of how a committee at the national level could work in particular concerning the denial of transfers.

Thursday, July 7, 2011

Third Preparatory Committee towards an Arms Trade Treaty starts Monday 11 July in New York

The events in the Middle East and North Africa over the past few months have demonstrated in tragic detail the importance of an arms trade treaty that effectively regulates arms transfers between States. Conventional weapons and ammunition as well as chemical weapons supplied by arms manufacturing States have seemingly been used to violate the right to life and the right to protest of unarmed demonstrators exercising their rights to freedom of expression, freedom of assembly, right to information, and to liberty and security.

(c)Jesper Waldersten

More to come on the international legal implications of arms trade from the ATT bloggers ...

Friday, March 4, 2011

Final thoughts of the Second PrepCom: A firm step forward

In many ways, this was a surprisingly positive Second PrepCom. The Chair's non-paper, submitted to governments in advance of the prepcom, was quite poorly drafted in sections and contained some major potential loopholes. The revised paper Ambassador Moritan issued on Thursday (Day Four) was much more skilfully drafted (the definition(s) of transfer notwithstanding), clearer, and far more solid in its provisions. In particular, the section on criteria--the heart of the future Arms Trade Treaty--was a great improvement on its predecessor. As Adlai Stevenson once said, "All progress has resulted from people who took unpopular positions." Credit is thus due to Ambassador Moritan for his second draft paper this week.
(c) Jesper Waldersten

For no one should be under any illusions about the task ahead. The ill-fated decision to require the adoption of the treaty by consensus may yet scupper a serious agreement, at least within the auspices of the United Nations. Cuba, Egypt, Iran, and Syria, along with the Russian Federation, all seem opposed to an Arms Trade Treaty, at least in any meaningful sense. More positively, China and India appeared to demonstrate a more mature reflection on an ATT during this Second PrepCom, although both clearly still harbour significant concerns. Algeria and Brazil had little positive input into the process.

A new Chair's paper is expected for the Third PrepCom, which takes place in mid-July, again in New York. This paper is likely to set out the Chair's take on possible implementation measures, as well as revisions to his existing work on the preamble/principles, the goals and objectives of the treaty, scope, criteria, and cooperation and assistance. Look out for the details of a national regulatory mechanism, the national legislative framework sought, as well as provision for an international secretariat/clearing mechanism, presumably within the UN itself.

Given the potential future role of the UN in the implementation of the ATT (whose agencies and bodies have otherwise been eerily silent this week), our final thoughts on this PrepCom should justly go to a former UN Secretary-General, Dag Hammarskjld. He suggested that one should: "Never look down to test the ground before taking your next step. Only he who keeps his eye fixed on the far horizon will find the right road." Great and heart-warming advice ... except, perhaps, when you're entering a minefield...

Fifth and final day of the Second PrepCom - Consultations on the revised Chair's Paper

Overview of the day's discussions

Discussions continued during the final day of the Second PrepCom on the elements and text included in the revised "Chairman's Draft Paper" issued on Thursday. Delegations varied between support and criticism of the Chair's latest draft proposals.

(c) Jesper Waldersten
Delegations' statements

Hungary (on behalf of the EU) supports the incremental improvement of the draft paper. The EU does not consider it appropriate to include provisions on victim assistance, since the ATT "is not a disarmament treaty".

Denmark reiterated its objections to including transportation in the definition of transfer as it is difficult to implement within a licensing system. Sport and hunting weapons should be included, although the reporting measures could depend on the amount/type of weapons transferred (reference was made to the UN Firearms Protocol which foresees the adoption of simplified measures on reporting/licensing.

Algeria suggested deleting any reference to international humanitarian law and human rights law in the criteria section, since this can be "easily politicized" and noted that in any case these issues are covered in the objectives section.

Costa Rica stresses the importance of transparent reporting procedures. As to definition of transfer in Annex A. They suggested to add “or”. This reads as “title to and/[or] control over the equipment”

Norway suggested including a reference to armed violence and not only on armed conflict in paragraph 9 of the Principles section. They also suggested adding a reference to the UNSC resolution on women, peace and security (i.e. Resolution 1820, as well as Resolution 1828 on sexual violence)

Japan suggests that it will not be possible to regulate all the types of transfer, therefore there is a need to redraft the provision on transfer.

Iran called for the need to have an independent section on Principles in addition to the preamble. On paragraph 19 (Recognizing that States may adopt more restrictive measures than those provided in the ATT), they suggested that the provision may be equivalent to a unilateral coercive measures.

Lichtenstein recalled that the three pillars of the UN include human rights and development and noted that these are goals in themselves and should not be dependent on security issues (see Goals and Objectives paragraph 4).

Switzerland referred to ambiguities on transfer (Section 2 of the Scope). They felt there was no specific need to include manufacture under foreign license as a separate item. They proposed new wording to define transfer:

"Section II: International transactions covered by this Treaty include those listed below:
a. Export (includes re-export and temporary export)
b. Transit (includes transshipment)
c. Import (includes temporary import)
d. Transfer of title or control over conventional arms from the jurisdiction of one State to another
e. Transfer, by tangible or intangible means, of information which is required for the design, development, production, manufacture, assembly operation, repair, testing, maintenance or modification of conventional arms (Transfer of Technology).
f. Activities of negotiating or arranging contracts, selling or trading of conventional arms from a third country (Brokering)."

Mexico (on behalf of several American States) proposed the inclusion of diversion in the criteria section (5 F). On paragraph 9 (Principles), they suggests adding a reference to armed violence on this paragraph as well as in the section on goals and objectives. On criteria, they called for only “gross and systematic violations” of human rights to be covered (B3) and argued for the inclusion of a reference to international criminal law (B4).

New Zealand suggested changing the word “restrictive” in para 19 of Principles, in order to avoid any confusion on the legitimate right of a State to go beyond its own international legal obligations.   

Thursday, March 3, 2011

Day 4 of the Second PrepCom - Consultations on a revised Chair's Paper

Overview of the day's discussions
(c) Jesper Waldersten

The Chair circulated a new "Chairman's Draft Paper" and presented orally the changes that he had made. In general, the paper represents a significant improvement on the previous draft, most notably by clarifying that in reaching a decision whether or not to authorise any given transfer States Parties "shall apply" the criteria set out in the text. Previously, the drafting language had suggested that States were only being given guidelines that they could choose whether or not to apply in their decision-making.
The paper retains both "small arms" and light weapons" as well as "ammunition" as categories covered by the treaty. Parts and components and technology and equipment are, though, covered only if they are "specifically and exclusively designed" for weapons covered by the treaty. This means so-called "dual-use" items would not be encompassed by the treaty. There does not appear to be a mechanism to include new weapons or other categories of weapons that are not yet encompassed by those set out in the section on scope.
Disappointingly, the definition of "transfer", which is clearly central to the future treaty, retains the ambiguity inherent to similar definitions in the Convention on Certain Conventional Weapons, the Anti-Personnel Mine Ban Convention, and the Convention on Cluster Munitions.

"International arms transfers involve, in addition to the physical movement of equipment into or from national territory, the transfer of title to and control over the equipment."
Thus, it is not clear whether physical movement of weapons and the transfer of title must both occur before a transfer is deemed to have taken place. This potentially leaves a major loophole, since a State may undertake the two activities separately (e.g. first move the mines and only later transfer title) and thereby circumvent the obligations laid down in the treaty. Such an interpretation would also not cover the transit of weapons through a State Party, despite its specific reference in the list of activities covered.
Delegations' statements in response to the Chair's new paper

USA stated that there are also responsibilities upon recipient States, not only on exporting States. National implementation by recipient States are therefore also critical. The USA is not convinced that reporting under the treaty should cover all weapons encompassed by the treaty. It stated that the treaty is not a replacement for the UN Programme of Action on Small Arms and Light Weapons (SALW). On ammunition, the USA does not believe that this should be covered by the treaty. It claimed that the object and purpose of the treaty was to set minimum standards for the legitimate trade in arms and not to prevent death. Thus, illicit transfers should not be encompassed as they are already illegal. "Less may be more", and "The better may be the enemy of the good." The US wants the treaty to be "very discriminatory", i.e. to discriminate against the "rogues" who proliferate weapons irresponsibly.

Mexico stated that in the section on goals and objectives they wanted the issue of diversion to be specifically included. On scope, Mexico wondered why military explosives had been excluded. This was a particular concern for Mexico. Mexico also wondered whether electromagnetic arms would be covered. Mexico also asked whether the two elements in transfer were alternatives or cumulative. It suggested an alternative drafting intended to clarify them as alternatives (although their proposal seemed to the bloggers to maintain the ambiguity in the existing definition, using "as well as" instead of "or", which would effectively clarify the issue).

Japan stated that sporting and hunting weapons for recreational purposes should be explicitly excluded from the scope. On the definition of "transfer", it felt that some States would have problems in regulating a transfer of title where no physical movement of arms took place. They appreciated the clarification of the chapeau on criteria.

Hungary (on behalf of the EU) stated that the document had put the discussions "on a good path".

Iran set out its views on the elements to be included "in an eventual ATT". Main objective of the treaty should be to prevent illicit trade in conventional arms. The section on principles is the most important for developing countries. They wanted to see the "sovereign" right of States to acquire and maintain arms reflected in this section, and the right to self-determination of peoples under colonial domination or foreign occupation. Only wanted to see UN register weapons covered, except missiles. They are "flexible" on the issue of transit. Wanted precise and non-discriminatory criteria. Wanted possibility to amend the treaty by consensus. Wanted 100 ratifications, including 15 major arms-producing States, for entry into force. Accepted five-year review conferences. They wanted the establishment of a "denials committee". Finally, they wanted a rolling text with the proposals of all States.

Pakistan stated that arms control was central to the proposed treaty and called for language in this sense to be included in the principles section.

Ecuador restated its objection to the criteria of poverty reduction and impact on socio-economic development in a recipient State.

Cuba said that positions between States remained very divergent. Many elements in the Chair's paper were unacceptable to Cuba. The scope was excessively ambitious. Transfer of technology and equipment should not be covered by the treaty. Many criteria were not objective. In contrast, there was no prohibition on transfers to non-State actors, which Cuba wished to see.

Switzerland stated that it was not clear whether hand-grenades are covered by the proposed scope. It supported Mexico's views on the definition of transfer.

Sweden stated that the list on scope needed to be "right". Sweden felt that military explosives are actually a component and would therefore be covered. In contrast, the deletion of "munitions" meant that bombs, mines, and grenades were not explicitly covered. On criteria, they were pleased to see the risk of corruption covered, but wanted it also to be broader, not merely with respect to diversion but also market competition. On  C&A, they were surprised to see the phrase "industrial cooperation related to the treaty and its practical implementation" included.

Australia stated that transparency and accountability were important elements in the treaty. They wanted to see references to the impact of conflict and armed violence.

Norway stated its support for the revised chapeau on criteria. They wanted military explosives explicitly covered. They wanted transfer used as a generic term and said it should not be given an additional separate definition. Norway was concerned about the language used on victim assistance.

Nigeria stated its support for a dedicated secretariat to facilitate national implementation and international C&A.

UK stated that good progress had been made during the Prepcom.

Uruguay stated that the list of weapons in scope should not be exhaustive as it should cover new weapons. It proposed that the section on scope cover "future developments of conventional arms". It also wanted the issue of "abandonment" of weapons following a peace-keeping mission to be explicitly covered by the treaty.

New Zealand stated that the language on self-determination needed to be in compliance with existing international law. The reference to transfer and then also to import and export was not helpful. They completely disagreed with Iran's call for 100 States to ratify prior to entry into force of the treaty.

Poland stated that transfer should include technology transfer.

Germany stated that transfer should be defined as physical contrrol of weapons and not necessarily transfer of title.

France stated that reference to universally accepted definitions might be needed. They wanted evaluations of transfers to be done on a case-by-case basis. They wanted the reference to corruption to be strengthened. On C&A, on the issue of VA France was not convinced that it should be included in the treaty.

NGO presentations

The afternoon of Day Four began with presentations by NGOs.

IANSA made particular mention of the need to prevent the supply of weapons for use in gender-based violence. It also called for provision for gender-, age-, and culture-specific victim assistance to be included in the treaty.

Roy Isbister of Saferworld stated that all weapons, munitions, and ammunition supplied for armed forces and law enforcement should be covered under the treaty. This, he said, is what most major arms-exporting States already do. He gave the example of language used by the Security Council in the recent decision on Libya. He was pleased to see ammunition covered in the Chair's latest non-paper, as well as small arms and light weapons, and parts and components specifically designed for use in weapons.

Mr Isbister would like to see explosives, laser weapons, communications, night vision, robotic, and counter-measure equipment also covered by the scope of the treaty. He further called for internal security and law enforcement equipment to be covered by the ATT. He said that the annex was an elegant approach to retaining flexibility to enable the treaty to cover new weapons.

Amnesty International (Morocco) stated that the arms embargo on Libya was late but nonetheless welcome.

Anna Macdonald from Oxfam called on States to show greater transparency in military budgets. She applauded the criteria relating to the potential impact of an arms transfer on socio-economic development. She stated that corruption was a major driver in diversion, and called for stronger inclusion of the criteria on corruption in the treaty.

A second representative of IANSA stated that 490,000 out of 740,000 deaths from armed violence each year took place in situations other than armed conflict. He repeated the importance of criteria relating to homicides and gender-based violence. He called for verification that end-user certificates translated into reality. He also repeated the call for victim assistance to be covered by the treaty.

The Defence Small Arms Advisory Council stated that the only opportunity for industry to input into the treaty was short prepared statements such as this one, which was not conducive to its acceptance.

The World Forum on the Future of Sports Shooting Activities stated that the ATT should "by definition" only cover military firearms and fully automatic weapons and should cover government not civilian transfers. He claimed that the inclusion of small arms ammunition was unworkable. It was not possible to mark and trace small arms ammunition.

Delegations' statements in response to the Chair's new paper

Brazil stated that the ATT should not cover dual-use goods and were dubious about the inclusion of parts and components. They were not clear whether sporting weapons are covered or not under SALW. They also believed that the criterion on socio-economic development constituted intervention in the internal affairs of a State. They also stated that the information provided by a potential recipient State should be taken into consideration in the assessment made by the potential transferring State.

Colombia wishes tostress that arms should not be diverted to NSAGs. They also had a problem with the different criteria, except the one dealing with Security Council embargos. It further stated that the treaty must lay down similar rules for buyers and sellers.

Egypt believes that the new proposal submitted by the Chair is too ambitious and regrets that their views seemed not to have been taken into account. They made particular reference to the inclusion of SALW and ammunition in the proposed scope of the treaty. They also recalled their view that developing countries need incentives to adhere to the treaty. Hence there should be the inclusion of a provision that if the criteria are met, there should be an right to receive weapons.

Italy agreed with a positive listing of weapons. They are of the opinion that sporting and hunting weapons should not be included in the scope of the treaty.

Malawi is in favour of including SALW and ammunition in the scope of the treaty. The protection of civilians in armed conflicts from illegal acts committed both by State and non-State actors must be referred to in the preamble.

Japan states that if transfers cover a broad definition of activities (see annex) then it would be too complicated to assess "all" transfers according to the criteria set out in the paper (e.g. for transport, transfer of titles, etc). They would like that transfers should be assessed according to what the national system of the transferring State can effectively regulate.

Israel repeated its question as to the status of the annex and to what extent it can be easily amended.

India stated that it is important that the views of all States be taken into account to reach universal participation. Regarding the principles, they stressed the rights and obligations of both exporters and importers. They again stressed that the terms used in the scope differ from those used in the Register. They wanted clarification with regard to manufacturing of arms and the ATT. They also want to include a provision prohibiting transfers to NSAGs.

Trinidad and Tobago stated that an ATT should also foresee changes and development in weapons. They are keen to have attention being paid to corruption.
Indonesia stated that the criteria on IHL and IHRL should only cover "serious and systematic" violations. It also believed that the reference to international law was too broad in the criteria. They also believed that the criterion on socio-economic development constituted intervention in the internal affairs of a State.

Tanzania wants an provision on follow-up mechanisms to address the issue of non-compliance.

Zimbabwe stated that they want a provision addressing the risk of diversion to illegal end-users, in particular NSAGs.

Peru stated that a provision on the addition of new weapons in the scope should be envisaged, maybe though the recommendations made by a committee of experts. The regulation of transfers to illegal end-users, in particular NSAGs, needs to be strengthened. Scope in their view should encompass ammunitions. Decisions made in relation to transfer of arms should also be assessed with regard to the information provided by importing States.