A fightback ... of sorts



© Jesper Waldersten

This morning, we heard several enlightened delegations tackle head-on the heart of the new paper on criteria, calling for proposed transfers that would fall foul of the criteria to be automatically denied. Leading the charge were, in alphabetical order, Liechtenstein, Mexico, Norway, Portugal, and Switzerland. Too many other enlightened States, however, hedged their bets or were unnecessarily vague on what specific language they wanted. The Netherlands, for example, said risk assessments were “not for fun”. Even fluffier was the European Union, which stated only that there was "particular work needed" on paragraphs 4, 5, and 6 of the newest proposed text, which deal with the consequences for the proposed transfer where there is a substantial risk that the arms will be used to violate various aspects of international or national law.

Several contras took the floor to decry the latest Chair's draft, as weak as it is. Venezuela stated that the latest paper was not a good basis for consensus. Syria said it would prefer the Chair's previous paper. India said it "cannot join those who showered praise on this [new] paper", which mixed assessments and included aspirational concepts. It could not support a "casual reference" to international criminal law. Ecuador said that criteria should not be based on assumptions or subjectivity (it gave as examples references to socio-economic development or corruption). Papua New Guinea agreed. Egypt stated that it did not understand how a risk assessment would be made in an objective, non-discriminatory manner. It claimed that the only way was for assessments to be based on decisions from competent multilateral bodies.

China complained that its concerns had not been incorporated into the latest draft. It referred to the inclusion of references to international humanitarian law and  international human rights law, and questioned why not include environmental law or other branches of international law? As China felt it was not feasible to be exhaustive it proposed instead the language of “serious violations of international law” (an interestingly novel and broad concept!). It later intervened to propose "...international law, including international humanitarian law and international human rights law". It also called for a new criterion whereby the proposed transfer would not “interfere in the internal affairs of other countries”. 

In a brief but helpful statement, the UK stated that in its view the term "transfer" under international law included gifts or loans, a correct understanding in our view. It called on other delegations to make it clear if they felt this was not correct. There was also a short, rather surprising exchange on "gender-based violence", with the Holy See strongly opposing the inclusion of the word "gender" in the treaty. It found support in this from Algeria, among one or two others.

At the end of the morning session, the Chair said he would issue a new paper on criteria, but would not change the critical wording of only a bare "presumption" against authorisation for irresponsible transfers.

The afternoon session continued the discussion of criteria. While delegates were waiting for the printed copies of the new text to be circulated, Malawi was given the floor. In an extraordinary ten minutes, he began by methodically listing the 70 delegations on whose behalf he was speaking.* At the end of the list he received a well-deserved round of applause just for his efforts. Of more significance, however, the statement included the following remarks:

"On criteria, these must, in the words of the GA resolution 'address the problems relating to the unregulated trade in conventional arms and their diversion to the illicit market'. We need this treaty to prevent authorization of transfer of conventional arms where there is a substantial risk that those weapons would be, inter alia:
- used for, or facilitate, serious violations of international law, including international humanitarian law and human rights law,
- having a destabilizing effect or exacerbating existing conflicts,
- diverted to unauthorized end users."

It remains to be seen whether this is indeed a pivotal moment, but it was certainly an impressive and highly welcome orchestration in favour of a meaningful Arms Trade Treaty. As H. L. Mencken said, "It doesn't take a majority to make a rebellion; it takes only a few determined leaders and a sound cause." In the ensuing debate, Mexico, Switzerland, and Trinidad and Tobago offered suggestions to significantly strengthen the Chair's text, including to require a denial of authorisation each time the criteria were met. Comments from the contras were largely true to previous form. Pakistan said it could not accept a presumption of denial. Indonesia again talked about politicisation. But perhaps the most astonishing of the final statements of the week came from the USA, which reiterated its position that it could not accept absolute prohibitions, since there might be "security imperatives in favour of export". Thus, the land of the brave and the home of the free is openly arguing that its undefined "security imperatives" would justify their exporting weapons in full knowledge and understanding that they were likely to be used to commit genocide or crimes against humanity. Truly, this is a strange, sad world we live in.

So where does that leave us at the end of the third of four weeks of negotiations? Well without a comprehensive draft treaty text for one. The draft was supposed to arrive on Thursday, then on Friday, and now on Monday. Don't hold your breath, though. The President of the Diplomatic Conference has every interest in making delegations wait and forcing them to hammer out a basic agreement in the informal sessions that will be held throughout the weekend and beyond before he dares to put another treaty text on the table. This time, his text needs to be a professional and almost final draft, given how little time remains and accepting that many delegations will need instructions from capital on how to proceed before a treaty could be adopted. One thing is for sure, the process will not be transparent. For, to quote the old joke, "People who love sausages and respect the law should never watch either being made."






* The names of these States are worth noting for posterity: Austria, Belgium, Bulgaria, the CARICOM member states (Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica, Saint Lucia, St. Kitts and Nevis, St. Vincent and the Grenadines, Suriname, Trinidad and Tobago), Chile, Colombia, the Czech Republic, Denmark, Djibouti, the ECOWAS member states (Benin, Burkina Faso, Cape Verde, Côte d'Ivoire, Gambia, Ghana, Greece, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone, Togo), El Salvador, Estonia, Fiji, Germany, Ghana, Guatemala, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malawi, Mexico, the Netherlands, New Zealand, Norway, Palau, Papua New Guinea, Peru, Poland, Portugal, Romania, Solomon Islands, South Africa, South Sudan, Spain, Sweden, Switzerland, Uganda, Uruguay, Vanuatu, and Zambia. Of particular note are the following absentees from the list: Australia, France, Japan, and the UK.

Brace yourselves for the sell-out

It was, in truth, an extraordinary day. Either more bumbling ineptitude or, just possibly, supreme diplomacy by a master of the dark arts, depending on your viewpoint.

© Jesper Waldersten

In the morning we were treated to the worst draft text produced thus far in this diplomatic conference (and that's up against some startling tough opposition). The Chair of the Main Committee dealing with criteria produced a new paper whereby the erstwhile criteria (now called parameters, consonant with their lessened status) were all moved into implementation. Thus, they would become a domestic matter of concern and not the subject of international obligation. The only obligation, in effect, was to conduct a risk assessment. And no consequences would follow for a proposed transfer that violated any of them. Nada.

As 20 or so delegations were still on the list to speak from two days ago following the circulation of his earlier paper, they addressed their comments to that paper which no longer seemed to exist. Another 90 minutes were thus wasted before the Chair could start calling upon a new list of speakers to elicit comment on his new, nihilistic rolling text. Fortunately, enough enlightened delegations had the nous and wherewithal to be fairly clear about what they thought of the subsidiarity of criteria and removal of almost all substantive obligations to deny proposed transfers that would violate what remained of those criteria. The Chair intervened rather haplessly to claim that it was just a structural change. Yeh, right.

The USA took the floor to make a rather shocking proposal whereby: “A State Party shall not authorize a transfer of conventional arms from or to its territory for the purposes of commission of genocide, crimes against humanity or war crimes constituting grave breaches of the Geneva Conventions or serious violations of common Article 3.” So the arms to be transferred have to be intended for the commission of genocide, crimes against humanity or war crimes in order not to be authorised. In fact, such a transfer is already a violation of customary international law, based on generally accepted principles and rules of State responsibility for internationally wrongful acts. But how are you going to prove intent? Does Russia intend Syria to use their weapons to commit crimes against humanity? How do we know, absent a tearful confession?

We thought things couldn't get worse. We were wrong. For then came the moment that many of us had dreaded from the start of this process. What was, at first glance, a much better Chair's text--in several ways--magically appeared on delegates tables. With the reported help of a European delegation, he had returned the parameters to a separate section, where they belong. So far, so good. And despite some remarkably slipshod English drafting, almost all of the criteria were back there. He'd even added in "gender-based violence, and violence against children"; "diverted to ... non-state actors"; and "violent crime as defined by the United Nations relevant instruments" to appease certain delegations. But then comes the bombshell:

"Where substantial risks exist, there shall be a presumption against authorisation."

A presumption. Not an "overriding presumption", as the rolling text was two days ago. Not even a strong presumption. Certainly not a requirement to deny. Just a presumption against authorisation. Which states are free to ignore. Whatever.

It goes on to say that each State Party "may consider" mitigation measures (so doesn't have to do so). No, no obligation here either, just a possibility. 

What this all means, in practice, is that arms transfers to Syria today would not be prohibited under this treaty if this text stands. There would certainly be a presumption against authorisation, but no obligation not to authorise, and thus any State Party would be acting entirely in accordance with the treaty if it decided, despite the presumption, to go ahead and transfer arms to a regime that is engaged in the commission of crimes against humanity, other serious violations of international human rights law, and, given the generalised existence now of a non-international armed conflict, serious violations of international humanitarian law. All it has to do is conduct a risk assessment first.

This was appalling enough, but there was worse to come. Delegation after delegation queued up to praise the Chair for listening to their concerns and lauding the praises of this new text. It was almost Kafkaesque; as if a judge's death sentence upon the head of an innocent man had been overturned on appeal and commuted to life imprisonment with hard labour. Crack out the champagne.

Hopefully in the cold light of day, enlightened delegations that have--or had--meaningful red lines will wake up and smell the cocoa. But don't bet on it. As David Levithan has written,

“It was a mistake,” you said. But the cruel thing was, it felt like the mistake was mine, for trusting you. 

Time to brace yourselves for the sell-out.

Follow the yellow brick road?

© Jesper Waldersten

This morning, one of the main committee chairs, in a moment of conference-induced euphoria, told delegations on Day 13 that he felt there was an increasing convergence in positions. (He was referring specifically to the scope of the treaty.) Ninety minutes later, presumably after the effects of the narcotics had worn off, he was telling the same delegations that there was little more he felt he could do to help as positions were simply too far apart and they were basically just going to continue going round in circles. What a difference an hour makes.

But the same statement could have applied equally to the other main committee, which dealt with the goals and objectives of the treaty. In both cases, the drafts produced by the chairs were good; surprisingly good, in fact, given the extent of opposition on many matters of substance from the contras.

So where do we go from here? We may still get either new ad hoc thematic drafts tomorrow, or even perhaps a President's consolidated paper. But to what end? Neither will be able to bridge the huge differences--conceptual, contextual, and substantive--that clearly exist between the enlightened and the contras. Without a stunning change in positions by one side or the other, we are forced to accept that this conference will in all likelihood end in failure. But as shambolic as its management has often been, that is probably the best outcome.

So which governments will have the political courage to step forward and take this issue on? Where shall we prepare for a future diplomatic conference that is properly organised and based on serious rules of procedure that foresee the possibility of voting? Berlin? Canberra? Copenhagen? Geneva? Helsinki? Lisbon? Lusaka? Madrid? Mexico City? Nairobi? Oslo? Paris? Port of Spain? Tokyo? Wellington? A combination of these? These are all good candidates based on their positions during the conference and there are potentially others, so there's no shortage of serious possibilities. Just a question of who's ready and willing to step up to the plate. And we're coming slowly towards a draft worthy of the name, albeit one that is unpalatable to a significant minority of delegations, so a new process will not have to start from scratch. Just seven more negotiating days to go and then we can begin looking for the yellow brick road. 

A defining moment?

The overriding principles for the management of the ATT Diplomatic Conference were said at the outset by its President to be "transparency" and "inclusivity". As not all of you out there are lawyers, we thought it might be useful to offer some preliminary, working definitions of these complex terms.

© Jesper Waldersten

First, transparency. Transparency can be most usefully defined as something "obscure", "opaque", "difficult to perceive", and "conducted behind the scenes". Thus, a transparent negotiation is apparently one that is conducted through written contributions from delegations attached to emails sent to each committee chair that are then discussed openly among the five permanent members of the UN Security Council. Seemingly by osmosis, this process leads magically to a new rolling text.

Now for "inclusivity". Inclusiveness has a two main elements to it. First, it means limiting time for comment on the existing rolling thematic text through the convening of consecutive rather than parallel sessions, thereby preventing the chairs from ever being able to go through the list of speakers before a new rolling text is issued. Second, it means allowing every single delegation to participate actively in determining the outcome of negotiations, as long as, of course, that delegation represents a State that is a permanent member of the UN Security Council.

Too cynical? Perhaps. But we will soon get an inkling of how representative these definitions are, since on Thursday morning the President of the Diplomatic Conference is widely expected to present a comprehensive rolling text, the first "almost" draft of an Arms Trade Treaty. Who will be happiest? The contras, the enlightened, or the P5?  Vamos a ver. And remember, as Lily Tomlin once said, "No matter how cynical you get, it is impossible to keep up." 

Eton Mess

The quaintly named "Eton mess" is a traditional English dessert consisting of a mixture of strawberries, pieces of meringue and cream, which is traditionally served at Eton College's annual cricket game against the students of Winchester College. It is rumoured that the dessert was created when a meringue dessert was dropped on the floor and what could be salvaged was a crushed meringue which was served with strawberries and cream.

What does this have to do with an Arms Trade Treaty? Well, first of all, the inadvertent creating of Eton Mess, if slowed down one thousand times, would still be speedier than the current drafting process for the ATT. About 80 States are actively contributing to an on-screen Word document in the negotiating room to which new text is laboriously added in red-coloured revision mode. Watching this chaotic approach to treaty elaboration is akin to viewing a train crash in slow motion.

Today, the countdown started from 10 negotiating days left. And it is increasingly clear to numerous delegations that too many important differences are simply irreconcilable and that we have insufficient time to conclude an agreement worthy of the name this month. For example, despite more than 20 delegations taking the floor on criteria this morning, there were 26 speakers still on the list when the session closed. This monologue will continue tomorrow afternoon, following which the chair of the committee will somehow try to revise his paper, only to  begin the same process again on Thursday (by which time just over six days will remain). And positions seem as far apart as ever. The contras have something right---there's no agreement in the room as to what exactly it is we are trying to achieve. Banning illicit trade or preventing irresponsible transfer? Establishing common international standards or reinforcing national sovereignty and discretion? Drafting a trade agreement to level the playing field or elaborating a treaty to prevent violations and abuses of human rights?

It's always overly tempting to see the world in Manichean terms--good versus bad; contras versus the enlightened--but the dynamics at play in the room are actually more complex than that. Shades and nuance exist among the enlightened as they do over on the dark side of the force, and many delegations are happily hiding behind the shirt tails of others. And to add to the confusion, some issues are genuinely difficult from a moral standpoint. Many states argued today, as some have done before--that all transfers should be prohibited to non-state actors (by which is meant terrorists and rebel groups, for the most part). While an overwhelming majority of us can surely stand behind a principle whereby al-Qaeda should not get weapons, how about the rebels in Syria? Or Libya last year? Or the Kosovars in the late 1990s? How about the Tutsi refugees in 1994? Or the Bosniaks in the mid-1990s? And how much of the overall problem are the NSAs? Certainly not all of it. Who gave us the genocide in Rwanda and facilitated mass slaughter at Srebrenica? Who gave us Operation Cast Lead and the indiscriminate shelling of civilians at Mullaitivu, the massacres at Homs and Houla?

The greatest danger now is that we end up supporting a straw man argument which justifies a treaty regulating only the illicit trade (by which is meant a transfer not authorised by the state). Follow that logic and surely all we have to do is legitimise the formerly illegitimate and we can claim victory. Maybe explicitly ban transfers to NSAs while we're here. What a Pyrrhic victory that would be.

It must not be so. No treaty at all is preferable to a treaty that would allow a state to lawfully transfer weapons where they are likely to be used to commit or facilitate acts of genocide. For this is where the Russian-inspired P5 approach to criteria as a subject of purely national discretion is surely leading us. States are already responsible in international law for complicity in an international crime such as genocide or crimes against humanity. The treaty must not be allowed to become a lex specialis that might legitimise enabling such atrocities through the arms trade. 

It is not yet too late. But if we are to avoid this grim reaper scenario, the NGOs have a critical role to play. They need to make it loud and clear to States they can influence that a treaty which does not actively prevent transfers likely to be used to commit or facilitate international crimes or other serious violations of human rights or humanitarian law must not be adopted. It's not a treaty at all costs. For such a cost could ultimately be paid with too much blood.

And who knows, perhaps with some slick diplomacy and powerful campaigning, the drafting mess that gets scooped off the floor on the 28th of July may, just may, be magically transformed some months or even years hence into a treaty that will truly make a difference. The world has waited this long for an ATT, after all. Let's wait a little longer and make sure we get it right. For in the words of the author Napoleon Hill, "Patience, persistence, and perspiration make an unbeatable combination for success."

Shadow boxing against the clock

On Day 10 of the negotiations, the Chair of the main committee dealing with treaty goals and objectives circulated only a compilation of state submissions and then adjourned the meeting. He finally circulated an additional document--his own rolling text--on goals and objectives in the afternoon. Subsequent discussions were split between the No-No delegations (e.g. Russia and friends) that wanted the treaty only to focus on illicit trade, and the Enlightened, which wanted it to save lives and limbs. 

© Jesper Waldersten

Meanwhile, the Chair of the main committee dealing with scope presented his own take on the status of negotiations. His draft scope provision had three parts, addressing items to be covered by the treaty (i.e. weapons and related devices); activities; and a non-circumvention clause. All the written proposals submitted to the Secretariat by states were annexed to his draft. The scope was potentially quite broad (one version covered "all conventional arms ... including ..."), but he also provided narrower alternatives. Small arms were only covered when they were for "military use" (several states opposed this limiting clause in the debate that followed).

As could be predicted, the room was also split on whether to include a non-circumvention clause. France, Germany, Italy, Norway, Sweden, Switzerland, and the UK supported the structure of the chair's paper and the inclusion of the non-circumvention clause and accepted the Chair’s text as a starting point. India claimed it was unprecedented in terms of its placement in such treaties. Iran, Malaysia, and Pakistan were not in favour of such a clause. China was doubtful. USA stated its support for a non-circumvention clause but not necessarily in the scope provision. Singapore suggested it could be moved to the implementation section.

Syria stated that the UN register does not include most modern weaponry. It suggested including modern weapons, particularly “electromagnetic weapons” (including missiles and projectiles), as a separate distinct category. Iraq also wanted to cover modern weapons.

Also during the debate, Cuba and Russia called for definitions of the items included in the scope provision. This is surely another attempt to mire the negotiations in detail, since, in all likelihood, there is insufficient time to agree on definitions for each of the items referred to. Indeed, the bigger--and central--question is now whether there is sufficient negotiating time to conclude a treaty. Only ten days (ostensibly 60 hours of active, open negotiations) remain, of which 7.5 days are only supposed to be in single, not parallel, sessions.

To quote Frank Bruno, "Boxing is just show business with blood." Shadow boxing, in contrast, is defined as "making a show of tackling a problem or opponent while avoiding any direct engagement." Which paradigm are we in? It's not yet clear. What is probable is that on Monday, it's "seconds out, round 11".

Waste not, want not

© Jesper Waldersten

"If we said that we had wasted two weeks of the Diplomatic Conference, that would be unfair." So said Iran at the end of the day. "But", the Iranian representative continued, "it would be contrary to reality to say we'd started the real negotiations." As Pakistan observed, it is "unusual" not to have a rolling text at this stage of the negotiations. And negotiations "need to take place in a structured manner."

Apart from the veiled attack on the apparent lack of dynamism, structure, and organisation of the diplomatic conference, the day's most notable--and troubling--event was the statement by the United Kingdom on behalf of the P5. The P5 now supports the Russian Federation's proposal to incorporate criteria within the section of the treaty dealing with national implementation. This is supposed to be purely a "structural" rearrangement (though the UK still felt constrained at the end of the agreed statement to speak in its individual delegation capacity to underline that it was not a change of "substance or content"). So even though the treaty is supposed to be establishing the highest possible common international standards, the P5 thinks it would be a good idea to put the standards in a national implementation section. A section that will put national discretion and sovereignty at the heart of the provision. 

How could the UK and France be so naive? Or are they deliberately torpedoing the treaty? Is this the beginning of the P5 pre-cooked treaty that a number of delegations have feared from the start?

In its general statement, the US was unable to bring itself to use the phrase "human rights" with reference to the criteria. The closest they came was in referring to "unacceptable or inhumane purposes". Instead, they launched an attack on Iran for its election to the Conference bureau, despite its record as a major supplier of arms to those who violate international law. Iran exercised its right of reply asking who was more peace loving, Iran or the US? It claimed that the US had supplied chemical weapons to Iraq and white phosphorus to Israel and that the US "proudly supported all dictators".

At least we had the last of the general statements today. Yes, nine days into a 20-day negotiating conference, delegates were still having to listen to general statements of states' positions. How was this a good use of time?

In other notable interventions, Côte d'Ivoire, Mali, and Moldova called for a ban on transfers to non-state actors. During the long session on criteria, Pakistan said there was "no prospect" of emerging consensus on the issue. It claimed that the controversy is not related to international human rights or humanitarian law per se, but on the manner that these criteria have been applied. Legal provisions need to be precise and any legal treaty should be based on the sovereign equality of states. The way they are presented is in favour of the exporting states. They called for parameters on the production of arms, which are the main problem, to be incorporated. As to why the risk assessment fails to work in practice, Pakistan felt that it is because political interests tend to trump legal provisions.

So where do we go from here? Tomorrow we should receive rolling texts for the preamble/principles; goals and objectives; scope; and criteria.  But what sort of rolling text will we get? Another compilation, as Cuba, Egypt, Iran, and Syria, among others, are seeking? Surely not. The time for compilations has come and gone. We need the chairs of the two committees to do their job and present a possible compromise text (even with a plethora of square brackets around controversial text) that can be negotiated as would occur in a normal diplomatic conference. As India noted poetically, "It's time to cook this dish." 

Down is up and up is down

'It seems very pretty,' she said when she had finished it, 'but it's rather hard to understand!' (You see she didn't like to confess, ever to herself, that she couldn't make it out at all.) "Somehow it seems to fill my head with ideas — only I don't exactly know what they are!" So speaks Alice in Lewis Carrolls' Alice through the Looking Glass.

© Jesper Waldersten

Indeed, it was hard to escape the feeling that we too today had stepped through a mirror to an alternative world. For we heard Iran, Egypt, Malaysia, and a number of others, including those cited below--many of whom are not known for their unremitting hunger for an ATT--all complain that there was no real negotiation going on and no rolling text with which to negotiate.

India may have spoken for many when it said that there was a "general concern" to move forward with the negotiations. One could turn the proposals into a rolling text/conference room paper or ask states to submit treaty text by a specific deadline. It stated that there is a need to move forward, and India needs to see a text for negotiation. Syria similarly saw the need to begin "in a practical manner" the negotiation on a specific text. Time is flying. It will not be possible to negotiate if we wait longer. Negotiation should start quickly.

Cuba helped to give clarity to this seemingly parallel universe, by expressing its fear that there will be an attempt at the end to impose a text on the delegations. "Hopefully it is not the intention of the President"; however it was a realistic scenario "that needs to be avoided". There is, it too claimed, a need to start with a true negotiation exercise. So far it has been an exercise in repetition and general statements. The problem is that there is no text available for negotiation. The compilation of ideas is useful; however a document of this type is not an effective tool. It supported the views of others that a deadline should be established for delegations to submit concrete proposals to prepare a rolling text. (It added, in case of doubt, its view that the objectives of the ATT should be only to contribute to combating illicit trafficking in conventional weapons.) Syria agreed with this.

So, did we see a game-changer today, a watershed in what appeared to be a negotiating desert? The answer should come on Friday, when rolling texts on at least scope and implementation (and possibly other sections) will be presented by the respective chairs. But let's not get ahead of ourselves. There's been very little shift in positions from delegations, which are as wide apart as ever on the key issues, but this was all too predictable given that there was no text to deliberate and on which to seek compromise. Until then, let us keep in mind the words of Alice and the Queen, which seem to describe a current mental state.

"I don't understand you," said Alice. "It's dreadfully confusing!"  

"That's the effect of living backwards," the Queen said kindly: "it always makes one a little giddy at first."    

Stop thinking and go in?

© Jesper Waldersten

On the positive side, interventions were generally shorter and more specific on day seven than they were on day six. On the less positive side, however, valuable negotiating time is rapidly being used up with these general exchanges of views (and precious little negotiating seems to be going on).

In the morning, states made initial interventions on international cooperation and assistance. The chair pleaded repeatedly for flexibility and imagination by delegates, but not much was forthcoming. Pakistan called for caution on the issue. It felt that many of the provisions discussed are related to the scope of the treaty and its goals and objectives. It claimed this is problematic because there is no agreement yet on these issues. North Korea agreed that the treaty's goals and objectives need to be determined before they could move forward.

China said that an ATT should help states to implement their obligations but without impinging on state sovereignty. Russia called for clarification on what is meant by implementation. It proposed to divide the issue into national implementation and international cooperation. The USA reminded delegates that this is a treaty on the regulation of the international trade in weapons. Although it is sympathetic to the victims of armed violence, assistance should only be related to the implementation of the treaty and should be provided on a voluntary basis by those states able to do so.

The afternoon saw a first exchange of views on final clauses. States discussed especially the number of ratifications needed to trigger entry into force, the reservations clause, and the dispute settlement provision. Peru said there should be no reservations on scope or criteria. Mexico said there should be no reservations at all. Ghana agreed. Iran said reservations should be allowed.

On the number of ratifications, Peru suggested 30, as did Mexico. Switzerland proposed 40. Ghana called for 60 ratifications, which Brazil supported. France suggested 65 ratifications, "hopefully including major exporters". Cuba stated 75 ratifications should be the minimum for entry into force, including primary exporters and users of conventional weapons.  Brazil likewise said there was a case for requiring major exporters to be among the ratifications. Iran called for ratification by all 10 major importer and exporter countries to trigger entry into force. China stated that the main importers and exporters must participate in the ATT. Italy, however, cautioned against another CTBT-type deadlock preventing entry into force.

Mexico called for a reference to Article 33(1), UN Charter on dispute settlement:

“The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

Trinidad and Tobago agreed there was a need for third party settlement of disputes in the event that conciliation and good offices was not successful. Switzerland called for a provision allowing for arbitration and recourse to the International Court of Justice as a last resort, as did Liechtenstein. Ghana said there was a need for a third party arbiter in case of disputes. Malaysia said that third party arbitration should be by mutual consent. Venezuela called for an effective dispute settlement mechanism in case of denial. In contrast, Italy said that in the dispute settlement clause, it should be made clear that denials fall within national sovereignty. France will provide a revised proposal for dispute settlement.

Switzerland called for voting where necessary for amendments to the treaty as did Liechtenstein. Iran, though, said amendment should only be by consensus. Denmark and Switzerland both called for deletion of the second paragraph of draft provision on relations with States not party. Switzerland also noted the need for a costs provision.

A final closed session of the day was held on criteria. It is not possible to report on the discussions, but Australia apparently presented the first joint proposal of the diplomatic conference (with Japan, Sweden, and Switzerland). About 30 delegations were waiting to take the floor when the day came to an end. As Andrew Jackson, the seventh President of the US famously said, "Take time to deliberate; but when the time for action arrives, stop thinking and go in."

A preamble to the real negotiations...?

© Jesper Waldersten

As Albert Schweitzer once remarked, "Truth has no special time of its own. Its hour is now -- always and indeed then most truly when it seems unsuitable in actual circumstances." With this in mind, it is hard to avoid the feeling that the current set-up of the diplomatic conference is more conducive to failure than to success. Some might even say that despite the references to "transparency" and "inclusivity", what is going on in the plenary and main committees is little more than a charade, a prelude to the real negotiations.

Day six--of the only twenty available--heard more general statements, listened to states' positions in the Main Committee that is dealing with the preamble and principles, and rounded off the day with an initial exchange of views on implementation. There is no sign of a rolling text, no apparent process for developing one, and very little sign of any narrowing of states positions. With six minutes to go in the preamble/principles committee, there were still 16 delegations that had not yet taken the floor. This time, delegations were not even dangled the ephemeral carrot of a Word document on the screens in the conference hall.

In its general statement, Russia reiterated what is clear to everyone--that it was not an easy task with tight deadlines to reach a consensus on a treaty text. It felt that the Preparatory Committee was not able to carry out its mandate, as it did not present recommendations for treaty language, instead generating only a working paper by the chair. Russia believes that this is a useful document but not a basis for serious negotiation or a prototype for the future treaty. Russia believes that the major goal of an ATT is to combat the diversion of arms to illicit trade via state control in a manner to be defined by the State themselves. Russia stated that it is ready for consensual work on an ATT.

China said that the treaty should reiterate the legitimacy of states to acquire arms, and called for a non-discriminatory ATT. On criteria it was a sovereign right whether or not to give the green light to a proposed transfer, and called for the treaty not to include "discriminatory, political criteria".

Pakistan expressed its hope that the treaty would not be governed by “selective multilateralism”. The PrepCom was useful to understand the diversity of views, however divergent views still persisted. Any treaty, it felt, must address both supply and demand sides of the international arms trade. It should therefore tackle not only trade but also production of arms. The ATT is not a trade or a human rights instrument. There was interplay with commercial, political, and humanitarian issues, and a balance should be struck. It noted that Pakistan has established a mechanism for arms transfers engaging concerned ministries and department and had adopted guidelines at national level.

Switzerland, in line with its humanitarian tradition, called for a strong ATT that would contribute to reducing human suffering resulting from armed violence. It should be based on clear, strict, and effective rules. From a Swiss perspective, every transfer must be assessed in accordance with strict critera that must include: a sustantial risk that the arms would be used or divered for use to commit or facilitate acts of geneocide, crimes gainst humanity, war crimes or any other serious violation of humananitarian law; or human rights law; as well as a substantial risk that the arms would be diverted to the illicit market, thereby critically undermining peace and scecurity and impairing social, economic, or sustainable development. In such a case, the proposed transfer must be denied.

In an innovative move, Germany and Ireland both said that the eventual treaty should be open to ratification by regional and international organisations.

In the committee discussing the treaty preamble and principles, Russia, Iran, and Syria claimed--incorrectly under international treaty law--that a preamble is part of the operative part of an international treaty. In fact, as France correctly observed, a preamble is not part of an international treaty's provisions per se—it sets out the context and recalls the motivation for states to adopt the treaty, while affording some of the basic principles for its interpretation. Moreover, there is no requirement that a treaty even include a preamble. We are losing valuable time to an element that is at best desirable rather than necessary and at worst entirely superfluous. Nonetheless, Russia has requested a legal opinion from the UN Secretariat on the difference between a preamble and the principles of a treaty.

The UK suggested inclusion of a preambular paragraph that would recognise "that the promotion of international peace and security should involve the least diversion for armaments of the world's human and economic resources" (a reference to Article 26 of the UN Charter).

It's not the despair, it's the hope I can't handle

© Jesper Waldersten

Day Five was another frustrating experience in the negotiations. Two parallel main committees were convened for the first time to discuss substantive issues, which represents progress of sorts, but considerable time was spent re-discussing questions of procedure. When we finally got going, it was only to listen once more to a series of restatements of national positions already exposed during the preparatory committees.

Rather bizarrely, both committees chose to use an empty Word document on large screens, presumably hoping that the blank page would inspire us out of writer's block into creating flowing prose of epic proportions. If that was the intent, sadly the reality was rather more prosaic. Committee 2, which was tasked with addressing the scope of the treaty, managed to finish the day with three words in its nascent Word file: "scope", "items", and "activities". 

Apart from that, we heard statement after statement from delegations, most reiterating that the seven categories of the UN Register of Conventional Arms plus small arms plus ammunition should be covered. One delegation even suggested that drafting of the scope could be simply "all arms except for biological, chemical, and nuclear weapons" would be the way to go. This is the common definition of such weapons. Cuba, however, questioned the desirability of such an approach. The US reiterated its opposition to the treaty covering ammunition. 

Meanwhile, Committee 1 was tasked with addressing the goals and objectives of the treaty. Quite why we need any goals and objectives in the body text remains something of a mystery, but delegations leapt into the fray with something approaching alacrity. Iran asked whether we were trying to negotiate a trade agreement, a human rights treaty, or even an environmental accord. Pakistan suggested that the development and production of arms were missing from the aims of the proposed treaty. Norway and France stated that the goals and objectives were "a given" as they were set out clearly in General Asembly resolution 64/48: the need for commonly agreed and binding international standards governing arms transfer. This and similar positions was set out by many other delegations. Interestingly, Tanzania called for supply of weapons to pirates to be cut off (they would probably not be caught by other draft provisions, at least in the President's Discussion Paper). Overall, however, it was clear, that consensus on this topic remains as elusive as ever. Surely we could just drop the whole section altogether and save us some of the heartache?

More broadly, there is no agreement on working methodology for week 2 of the diplomatic conference. Parallel sessions and NGO access are being balanced with a threat to re-open the question of the status of Palestine in the conference. Another day will probably be lost on Monday to procedural questions and more general "high-level" statements. Thirty hours gone and only ninety hours of negotiations to go. Can we still do it? As John Cleese famously said in the 1980s film Clockwise, "It's not the despair, I can handle the despair, it's the hope I can't deal with."

Out of the paddock and into the sheep dip?

© Jesper Waldersten

Day Four of the Diplomatic Conference resumed after the July 4th holiday in the USA with a series of uninspiring general statements. Delegations reiterated positions that were already well known, adding little of value to the discussions. The best suggestion came late in the day from Portugal, which suggested an end to “liturgical” statements, only to be slapped down rather undiplomatically by the President.

Towards the end of the morning, the President returned to the podium to present his proposal for the Conference’s method of work. The three basic principles that would guide the work would be NAUEA (nothing’s agreed until everything’s agreed), transparency, and inclusivity. He then suggested two “Principal Committees” be established in accordance with the Rules of Procedure (Rule 46 allows for unnamed subsidiary bodies to be set up). Committee 1 would deal with the preamble, principles, goals and objectives, and criteria. Committee 2 would address scope, implementation (including cooperation and assistance), and the final provisions.

The President had not yet finished his presentation when a series of delegations asked for the floor in what appeared to outsiders as a pre-orchestrated delaying tactic. Iran sought to provoke by referring to its satisfaction at having Palestine and the Holy See as “participating states”; no one rose to the bait. It also opposed the establishment of any subsidiary body that would meet in parallel sessions with any other conference body. Algeria suggested that the President was as talented a dribbler as Lionel Messi. It claimed the Chair’s new text was inconsistent with the principles he had just espoused for the Conference and asked how delegations should deal with the earlier text. It also appealed for a single group to agree on the objectives for the treaty.

A few other no-no states (“no treaty, no way”) then took the floor one after another to support Iran’s call for no parallel meetings: Cuba (twice), Syria, Iran (again), and DPR Korea. Once again, the debate substantially ran over time so the interpreters left for lunch. The President then called time on a predictably depressing segment, agreeing to consult with concerned delegations.

The afternoon session continued with “more-of-the-same” general statements. Of note was a statement by the USA on behalf of the five permanent members of the UN Security Council that called for a simple, short, and easy-to-implement treaty that would not hinder the legitimate trade in arms or the legitimate right to self-defence. It suggested 65 ratifications was normal for such treaties (surprising given that an ATT will likely be sui generis, and that the only other comparable treaty that has such a threshold is in the disarmament field—the Chemical Weapons Convention—and let’s not forget that chemical weapons are deliberately excluded from an ATT based on the General Assembly mandate. The P5 also appeared to call for entry into force to be triggered only when the major exporters have adhered to it, but hopefully this was just misheard as this could preclude an ATT ever entering into force.

President Moritán returned at the end of the afternoon session (how the interpreters must love him) to try and force through an agreement to start consultations and formal discussions in the two parallel committees. India asked a series of pertinent questions about process, including whether the sessions would be open-ended, suggesting that delegations should “not be constrained by deadlines or headlines”. The UK intervened to describe delegations delicately as “sheep” waiting to be “released from the paddock” so they could “run uphill”. She seemed to be keen to get to the negotiating stage, which is clearly welcome and indeed long overdue. As the no-no states returned to the charge, questioning the President’s proposed method of work, Spain became the first brave delegation to refer indirectly to the four-letter “V” word, stating that it was necessary to “decide one way or the other”. A two-thirds majority is required for a vote on procedural matters, but this can occur only after all efforts to secure consensus have been exhausted. Yet some of us are mentally exhausted already, and we haven’t even started to really work.

Tomorrow we will, we hope, start to talk substance. Yet it will be the treaty goals and objectives that will be discussed, surely the most unnecessary of all the elements in the President’s Discussion Paper, as well as the (clearly far more important) issue of scope. There are rumours that many delegations preferred the Chair's July 2011 text to his July 2012 offering. (Just who did draft the latest version?) And only 96 negotiating hours to go. Out of the paddock and straight into the sheep dip?

The End of the Beginning

© Jesper Waldersten

So, at last, we have a negotiation underway. The UN Secretary-General formally opened the Diplomatic Conference at 10.50am on Day 2 and Ambassador Roberto Moritán was appointed by acclamation as the President of the Conference. In accepting his position, the President stated that "Finally, finally, with a little delay, we are opening a negotiation of an historic, uniquely important treaty." He further noted that: "On occasion, diplomacy has dark times." He further remarked that every UN member state was present in the room, a testament to the importance of an Arms Trade Treaty.

The UN Secretary-General then delivered his opening address, remarking that "the whole international community is watching how the conference will come out." He said that it was a "disgrace" that there was no multilateral treaty governing the transfer of conventional weapons and observed that "the world is overarmed and peace is underfunded". He claimed that the world spent US$1 trillion each year on arms and that the equivalent of 60 years of funding for peacekeeping was less than six weeks of military spending.

President Moritán then suspended the conference for "five minutes" to resolve some difficulties, i.e. the question of the participation of Palestine in the Diplomatic Conference. Palestine submitted its credentials to the Credentials Committee, which would then be required to rule on them or report back to the plenary of the conference where a vote would then, in all likelihood, have to be held. As a conference set up by the UN General Assembly this was potentially of major significance.

Five minutes became seven hours. At 5.55pm President Moritán returned in a hurry (the interpreters were about to leave) and Palestine was seated between the Holy See and Afghanistan at the front of the hall, requiring a game of musical chairs by states and a long huddle to resolve an unknown final dispute. The reseating was achieved after further intervention by the President (with UN security personnel standing by) and at 6.18pm the President returned to the podium and, at whirlwind speed, adopted the Rules of Procedure (without amendment) and the agenda for the conference, and the election of the 14 members of the Bureau for the conference was duly secured.

At this point, the Holy See took the floor to complain bitterly that they had been downgraded from their status of participating state, which was a "flagrant disregard of the principles and practices of the organisation". "In no way" was this a precedent for future conferences.

With the interpreters having now left, President Moritán continued in English and called for the appointment of Daniel Prins, Chief of the Conventional Arms Branch of the UN Office for Disarmament Affairs (ODA) as the Secretary-General of the Diplomatic Conference. In congratulating his appointment by acclamation, the President said that they “now had to work hard”.

The President then started the high-level opening statements. Many ministers had already left New York, but the Norwegian Minister of International Development, the Australian Minister for Foreign Affairs, the Parliamentary Vice-Minister for Foreign Affairs of Japan all took the floor. Norway called for a “meaningful treaty” with “strong and binding language” to be negotiated that included small arms and light weapons and ammunition. Japan said the treaty “must not leave the arms trade in darkness”, while calling for “flexibility” on transit and brokering. Australia said that “any delay means more lives lost”.

In closing the meeting, Ambassador Moritan announced the circulation of a new draft “which is not the basis for anything”. “It might be wrong and it might even be awful.” A later blog entry will analyse just how wrong or awful this new text might be, which he must nonetheless hope will prove to be the basis for negotiations.

There is no meeting on Day Three of the Conference, as it is 4th July, the US holiday that celebrates US independence from Great Britain. We will reconvene on Thursday at 10am to begin the real work. To paraphrase a famous Hollywood phrase, “this stuff just got real”.

Palestinian statehood and an effective Arms Trade Treaty are not mutually exclusive

If a vote is held today, or later this week, to decide whether to admit Palestine as a participating state in the negotiations for an Arms Trade Treaty, this may determine whether the Diplomatic Conference will even effectively start. An historic decision to admit Palestine would most likely lead to Israel and the USA (and possibly others) walking away from the conference. It would, however, be a terrible mistake to allow the negotiations to collapse.

It is argued by some that the pressure to admit Palestine is a machination by certain states opposed to the idea of an Arms Trade Treaty. If that is true, allowing the negotiations to collapse would be yielding to those states. Thus, the remaining participating states should continue the negotiations and adopt as strong and effective an ATT as possible. In any event, Israel and the USA would likely not ratify an ATT (though for different reasons), so why should their absence torpedo the talks?

Palestinian statehood and an effective Arms Trade Treaty are not mutually exclusive.

The End of the beginning or the beginning of the End?

© Jesper Waldersten 

The ATT negotiations failed to begin as expected this morning as the question of the participation of Palestine as a State blocked the opening ceremony. Israel and the US have made it clear that they will pull out of the diplomatic conference should Palestine be admitted as a participating State rather than an observer.

Palestine was admitted as a full member of UNESCO in 2011; such status is only accorded to States.

This could be the fastest diplomatic conference in history, as well as the least successful.

As if there weren’t already enough obstacles to an effective arms trade treaty...