Averting insanity on the ATT

by Daniel Mack, Instituto Sou da Paz

As First Committee gets underway, among many essential items on the docket one may receive special attention: the resolution that will define how and when Member States will attempt to fulfill their mandate in the Arms Trade Treaty (ATT) process.

The disappointment of July is still fresh in our mind, especially considering how close the Diplomatic Conference—seemingly—came to agreeing a text. However, the historical relevance of July will only become clear once UN member states actually finalize the process: was it a derailment or a postponement? Moreover, and most importantly, what will that failure signify in terms of substance—will it prove a stronger text can be negotiated or will it make governments ‘gun shy’ (pun intended) of seeking the necessary improvements to the draft treaty text (CRP.1)?

While the purported need for “more time” to discuss an instrument that has been dissected ad nauseum for six years was laughable, especially given the origin of this “need” in electoral politics, it could in the future prove to have a considerable silver-lining: the draft presented by the Chair, Ambassador Moritán, is so full of loopholes—some extremely dangerous—that it would have been very unfortunate if the text had been agreed upon.

The draft’s failings have many origins, with the consensus straitjacket as a major culprit. Also identified by some observers was the manner in which the Chair conducted the negotiations, with some states feeling disenfranchised because of linguistic and logistical problems, and others complaining that it was a “negotiation with the Chair” rather than among States. Finally, some of the draft’s major weaknesses were demanded by those governments requesting more time for negotiations, including the United States.

Nonetheless, it is important to recognize that as a starting point for negotiations the draft reflects important steps forward. There are remarkable achievements therein, including: recognition that under certain circumstances States must never authorize arms transfers; universal acceptance that prior to authorizing a transfer of weapons States must conduct ‘due diligence’ national risk assessments to ensure adherence to IHL and international human rights law; requirements that States report on their international arms transfers; and, importantly, agreement that small arms and light weapons must be part of the instrument’s scope given their prominence in the problems it attempts to tackle. In several sections, such as the Preamble, Principles, Goals and Objectives, Secretariat, International Cooperation, International Assistance, and most articles starting at 15 (Signature/Ratification), the draft needs minimal changes to become entirely adequate for its purpose.

This is the good. The “bad and the ugly” is that several other articles are flawed enough to completely undermine the very reason for negotiating an ATT. Among several others, the most dangerous are:

• a scope that ignores vast swaths of types of conventional arms (those not included in the UN Register) and the munitions and ammunitions that allow all weapons (whether under the Register or not) to kill, in addition to insufficiently covering the parts and components that can be transferred separately to circumvent the treaty’s objectives;
• a definition of “transfers” that incorrectly equates it with “trade,” thereby potentially excluding gifts, loans, and state-to-state transactions not strictly commercial in nature;
• a prohibition of arms transfers on the ground of genocide, crimes against humanity, or war crimes based on intentionality—which would create the absurd situation that only a country publicly stating it was selling arms for the purpose of these breaches could be held responsible, which no State would do;
• a risk assessment procedure based on the legally-dubious and arguably extremely high threshold of “overriding risk” rather than the proper “substantial risk” of serious violations of IHL or human rights, and that furthermore fails to adequately include the substantial risks of diversion and facilitating organized crime or armed violence (including gender-based violence, but not only) as also sufficient reasons not to authorize an arms transfer;
• a clause (the infamous 5.2.) that would allow States to circumvent the entire ATT by simply ensuring (or claiming) that irresponsible and dangerous transfers occurred under “defence cooperation agreements”; and
• a reporting mechanism that has no required provision for transparency whatsoever, allowing States to keep information on arms transfers secret from citizens.

In their reactions to both the substance and process challenges ahead, States will define during First Committee how July ultimately goes into posterity. As such, in our opinion, it would be essential that diplomats perform two main tasks regarding the ATT this October:

1. acknowledge that the current draft text is inadequate for an ATT that would deliver actual change to the status quo of international arms transfers—and in fact contains serious loopholes and weaknesses that could undermine the treaty’s objectives and perpetuate “business as usual,”’, legalizing the irresponsible transfers it should outlaw; and
2. draft and approve a resolution that gives negotiators the necessary tools to deliver in early 2013 the needed output, that is, an ATT that fulfills its humanitarian imperative.

Undoubtedly, the substance of the ATT and the provisions of its text are more important than the exact process or date it comes into existence. Yet, often, substance depends on form. As such, we recommend not deciding to “use a hammer to fix a television” —or strapping a straitjacket onto oneself when needing to write. It is mind-boggling that after July some States are advocating for a continuation of the Diplomatic Conference’s rules of procedure, namely the unanimity approach, already a deviation of General Assembly norms.

There is no reason to hope that certain blockers would not repeat the behavior of filibustering and finally obstructing an agreement. Conceding the “tyranny of the minority” all the leverage again seems nonsensical if a different outcome (i.e. not failure) is desired. A famous saying comes to mind: “insanity is doing the same thing over and over again and expecting different results”.

Unanimous decision-making in a negotiation seeking to establish norms to compel change to the behavior of actors happy with the status quo requires said actors to “legislate against themselves” or to make sure the instrument is so watered-down to make no difference in changing their behavior. It is mad to expect States to make decisions that would go against their national priorities (as distorted, anachronistic, or callous they may be). Therefore, in democratic fashion, the overwhelming majority has the right to decide the paths taken by the international community, and those specific States that don’t agree have the right to excuse themselves from signing onto any instrument.
 
On the exact format of the next step, presumably several options are possible, including extending the Diplomatic Conference, establishing a new but final Conference, or determining a special session of the General Assembly or other formulation to conclude the ATT text. Regardless, two points are essential: this session must occur as early as possible in 2013 in order to benefit from July’s momentum and respect the urgency with which an ATT is needed; and its rules of procedure cannot be based on the distorted interpretation of consensus that hampered the negotiation of text and precluded possible agreement in July.

Governments need to give themselves the proper tools to have a chance of fixing the gaping loopholes in the draft ATT text, deemed “imperfect and inconclusive” by Liberian President Ellen Johnson Sirlief. Anything else would be a bit crazy. 

This article was originally published in the First Committee Monitor 2012 No. 1 published on 8 October 2012 by Reaching Critical Will/WILPF.