|© Jesper Waldersten|
It is not, of course, a perfect text. The use of the phrase “overriding risk” of arms being used for serious violations of international humanitarian or human rights law could be read to undermine the article on criteria. Read in concert with another paragraph in the same article, it could mean, in effect, that an exporting State Party could consider the security concerns of anyone—itself or any other state or entity—as more important than anything else. This is a serious loophole that must be closed somehow.
A second issue concerns one of the provisions governing implementation. A newly drafted sentence in the new text states that:
“The implementation of this Treaty shall not prejudice obligations undertaken with regard to other instruments.”
Put simply, it can be understood to mean that in implementing the treaty—for example, applying the criteria for possible denial of authorization to transfer—a State Party may not “harm” a contract or other agreement with a third party or even an international political declaration. It does not matter, according to the text, whether that instrument is pre-existing or even if it is adopted after the entry into force of the treaty for that state. This is potentially a massive loophole that would go to the heart of the treaty. Ordinarily, you cannot contract your way out of an international legal obligation. This provision suggests that with respect to the international transfer of arms, you can. This sentence must simply be deleted, as a number of states called for last night. In the early hours of the morning India offered a compromise deal that would achieve this aim. This merits careful consideration.
We are not there yet. There are still important debates to be had: on the need to include munitions, for example, or on whether to specifically cover armed non-state actors. It must be confirmed that export includes gifts or loans, and that the notion of combat aircraft encompasses drones. And as we seek to conclude our work today, let us bear in mind the words of caution from the American author, Frank Herbert. "Ready comprehension is often a knee-jerk response and the most dangerous form of understanding. It blinks an opaque screen over your ability to learn. The judgmental precedents of law function that way, littering your path with dead ends. Be warned. Understand nothing. All comprehension is temporary."
But let us remain positive. For sometime late on Friday (or, quite possibly, during Saturday morning), senior diplomats, representatives of more than 190 states, will almost certainly be given the precious opportunity to make history. Think long and hard, Ambassadors. Think of the thousands upon thousands of people who may ultimately live or die upon your decision. Do not confirm our ready cynicism. Do not shirk your responsibility. It’s judgment day for all of us.