The second draft: a treaty behind its time

The President’s second draft of the arms trade treaty (ATT) released Friday evening fails to resolve almost all of the major problems in the draft text. While some language has been tweaked to improve clarity and a new section has been added on diversion, the most fundamental loopholes remain. The draft as it stands is ultimately inadequate to truly prevent human suffering or enhance peace and security.

This draft reads like one drafted by a few of the major exporting states, not one drafted by the majority of countries that have demanded a strong ATT. It legitimizes the status quo, and, if adopted as is, will provide legal cover for states to sell arms regardless of the consequences for human lives and well-being, for true peace and security.

This article will only highlight a few of the remaining challenges related to scope; IHL and human rights; contracting out; and transparency.

Scope

Article 2(1) continues to list only the seven categories of conventional arms included in the UN Register plus small arms and light weapons. Furthermore, the phrase “at a minimum” has been deleted.

This, coupled with the deletion of the provision noting that states can adopt “more rigorous measures” than those in the ATT, puts the treaty in danger of becoming the ceiling rather than the floor for many countries. Article 5(4) in the implementation section mitigates this somewhat by encouraging states parties to apply the provisions of the ATT “to the broadest range of conventional arms”. But this is insufficient to make up for the lack of a robust scope and for the lack of future proofing of definitions and types of weapons. It also doesn’t address the loopholes in other aspects of the treaty that could be filled by adopting “more rigorous measures” at a national level.

Parts and components and ammunition/munitions still have separate articles outside of the scope. This means these items are not covered by the import, transit, transshipment, brokering, or diversion provisions of the treaty. And while the treaty’s prohibitions and “primary” export assessment criteria are applied to transfer decisions on items, the “second tier” export assessment criteria are not.

In the scope of activities, gifts, loans, and leases are still not covered. The majority of states have demanded the inclusion of these types of transfers because a large number of weapons are indeed transferred as such every year.

IHL and IHRL

The provisions related to international humanitarian law (IHL) and international human rights law (IHRL) throughout the text remain inadequate.

Principle 5 now refers only to the Geneva Conventions of 1949 and not the Additional Protocols, including those agreed after 1949, and is thus too narrow.

Article 6(3) in the prohibitions section has improved so that there is now a knowledge-based standard rather than a purpose or intent standard. However, the assessment is limited to the time of authorization rather than transfer and does not make mention of customary international law. It is far weaker than the language proposed by Norway on behalf of 25 states.

Article 7 on export assessment continues to pit the idea that arms could “contribute to peace and security” against IHL and human rights. This makes it seem like human rights and IHL detract from rather than contribute to peace and security. It also maintains the tiered approach to risk assessment. This means that some consequences of the irresponsible arms trade, such as gender-based violence, violence against children, diversion, development, and corruption, are only subject to risk mitigation measures. For the particular problems related to the criterion preventing gender-based violence, please see the article “New ATT text fails in preventing armed gender-based violence” in this edition of the ATT Monitor.

The new draft also continues, in articles 7(7) and 7(10), to refer to an “overriding risk” rather than “substantial risk”. As pointed out in previous editions of the ATT Monitor, this would allow states to undertake a transfer even if there is a risk of violations of IHL or IHRL. The vast majority of states have called for the use of “substantial” rather than “overriding”. The US delegation is the only one to have vocalized in plenary its preference for overriding.

Contracting out

Article 5(2) remains unchanged. It still subordinates the ATT to other “obligations” and prohibits the ATT from overriding defence cooperation agreements. This article has been described by the majority of delegations as a joke, as the most egregious loophole in the treaty, as rendering the rest of the treaty meaningless. Yet it remains.

Transparency

One of the original objectives behind this treaty was to enhance the transparency of the international arms trade. However, the draft text does not obligate public reporting, despite a concerted effort by the majority to ensure that it would.

Overall

Despite having undergone a “legal scrub” in the previous round, this new draft text still retains vague and ambiguous obligations such as “measures may include”, “where necessary and feasible”, “as appropriate”, “encouraged to”, etc. A general reading of the text is still less like a binding treaty and more like a political declaration or resolution.

In some cases, such as those highlighted above and elsewhere in this edition of the Monitor, the provisions of the treaty undermine existing international obligations. This is unacceptable and such issues must be fixed if this treaty is to be adopted. The vast majority of states have demanded changes to strengthen the treaty that are not reflected in this draft. National positions of just a few countries cannot allow international law to be eroded just so that they can continue profiting from poor regulation.

The ATT could be a constructive element in a larger human security architecture. Instead, it is being used to perpetuate the status quo of irresponsible arms transfers and an outdated concept of state-centric security. This concept no longer makes sense in our interconnected world where policies that enhance human security are much better suited to addressing current challenges.

In short, this treaty as currently drafted is behind its time. If it is not substantially fixed by the end of this week, it will represent a tragically lost opportunity.

Legal scrubbing with some substantial washing

A meaningful ATT is our “overriding” priority

Scope and criteria: Getting to the “operational” heart of the ATT