New Coalition Says Current Draft Arms Trade Treaty Would Be Worse For Humanity
By Jeff MORAN | Geneva
An informal coalition of prominent academics, researchers, and advocates in the fields of international human rights law and small arms control policy-making condemned the 26 July 2012 draft United Nations (UN) Arms Trade treaty (ATT) on 30 October. 
According to statements made, the draft ATT is absolutely unacceptable and adopting it without substantial changes would be worse for humanity than if there was no ATT at all. They expressed their position during a news briefing at the Geneva Academy of International Humanitarian Law and Human Rights, where they discussed the publication of “Academy Briefing #2: The Draft Arms Trade Treaty.” 
The formal official authors of the publication were Dr. Stuart Casey-Maslen, a Research Fellow at the Geneva Academy, and Ms. Sarah Parker, a Senior Researcher at the Small Arms Survey. The authors coordinated with and received input from representatives of the International Committee of the Red Cross (ICRC), Saferworld, and Oxfam. 
This is a significant development in humanitarian advocacy designed to influence the unfinished UN ATT negotiations process, which is expected to formally re-open where it left off and run for 10 days under consensus rules from 18-28 March 2013.  The condemnation may embolden states aligned with Mexico to kill consensus and to take the ATT negotiations outside the UN. This would amount to hitting the reset button and clearing the way for a more controversial treaty to be adopted under less rigorous two-thirds majority rules. 
Dr. Stuart Casey-Maslen was unable to be present for the news briefing and so was unavailable for comment. Dr. Casey-Maslen was a member of the Swiss delegation to the ATT negotiations. He was also on the ICRC delegation to the Oslo Diplomatic Conference in 1997 that adopted the 1997 Anti-Personnel Mine Ban Convention, which was a treaty that was developed outside the UN system and championed mainly by non-governmental organizations.
Ms. Sarah Parker sat in Dr. Casey-Maslen’s place and has been a member of the Australian delegation during the UN ATT process. Ms. Parker was joined by Mr. Gilles Giacca who is a researcher and Ph.D. candidate at the Geneva Academy. The news briefing was led by Dr. Andrew Clapham, co-Director of the Geneva Academy and author of several books on international humanitarian law.
News Briefing Details
Dr. Clapham opened the news briefing, and then passed the floor to Mr. Gilles Giacca who spoke for about six minutes. This was followed by Dr. Clapham again for about 15 minutes. This left over 30 minutes for a lengthy question and answer session where nine questions were answered. The briefing was attended by over 100 people. One professional reporter self-identified and asked the first question at the end.
Mr. Gilles Giacca first provided some historical context and motivations for the ATT. He then listed international instruments and declarations designed to increase controls over small arms and light weapons, to reduce arms related violence worldwide:
1. UN Program of Action on Small Arms,
2. UN Firearms Protocol,
3. The UN International Tracing Instrument, and the
4. Geneva Declaration on Armed Violence and Development.
Then he discussed the main challenges for the negotiations of the ATT so far:
1. Defining the scope of the weapons to be regulated by the ATT.
2. Defining the criteria to be used to condition authorized international transfers of weapons subject to the ATT.
3. Defining the monitoring, compliance, reporting and implementation mechanisms of the ATT, for such things as the provision of victim assistance.
4. The US insisting on negotiating by consensus rules, and so creating the option for a single country to “spoil” the treaty.
5. The large gap between two main camps: those who want a narrow scope treaty, and those who want a broad scope treaty.
After Mr. Giacca concluded, Dr. Andrew Clapham opened his comments by stating that the ATT should be an instrument “to prevent arms from fueling human rights violations or violating international humanitarian law.” He went on to state “what’s at stake here, I think, is that the treaty has a number of flaws or loopholes in it. And if it were going to be adopted in current form, arguably it could be worse than no treaty.”
Dr. Clapham said further that in various places the ATT appeared to set the bar lower than existing international standards, and that this would amount to a step backwards, or a “retrogression in international standards” as is stated in the Academy Briefing. 
He then detailed his main problems with the draft ATT, though he elaborated many problems as discussion developed into the question and answer period. His short-hand for three main problems were: the complicity problem, definition of war crimes, and the balancing problem.
1. Complicity Problem. This criticism focused on Article 3, paragraph 3 and specifically cited the text “A State Party shall not authorize a transfer of conventional weapons within the scope of this Treaty for the purposes of facilitating the commission of genocide, crime against humanity…” Here Dr. Clapham stated that the “for the purposes of facilitating” is too high a standard and is essentially not in line with international customary law. He said there should be an awareness test or a knowledge test, but not a purpose test. 
2. Definition of War Crimes. This criticism focused on Article 3, paragraph 3. In short he stated that limiting war crimes to “grave breaches” of the 1949 Geneva Conventions or serious violations of Common Article 3 of those Conventions would exclude most violations that are thought to be occurring in Syria, violations such as the disproportionate targeting of civilians. 
3. The Balancing Problem. This criticism focused on Article 4, paragraph 5. His basic point was that the use of the term “overriding” implied a balancing of peace and security v. human rights violations. He further stated that that if the “overriding” language was kept in the treaty, and if the common understanding by diplomats was that there should be a balancing of peace and security v. human rights violations, this would be “a step backwards” because “it takes away the idea that human rights are something absolute, that there can be no violations under any circumstances.” He suggested using other words such as “substantial risk,” “clear risk,” or even “overwhelming risk.” 
Other issues Dr. Clapham addressed in passing were:
4. The treaty scope (e.g. the exclusion of tear gas and rubber bullets for example).
5. Ambiguity about the definition for ammunition, munitions.
6. Ambiguity about the definition of trade (e.g. does it include state gifts and loans?)
Observations & Other Discussions
Most of the discussion was about loopholes and weak ATT language with respect to promoting human rights. The news briefing seemed at times, however, to be a public lamentation with the United States essentially blamed first for insisting upon consensus rules at the outset of the negotiations process in 2009, and then spoiling the draft treaty by creating the “balancing problem” between human rights and state security. 
While Dr. Clapham acknowledged the ATT as a “trade” and “export” treaty at one point, his commentary was delivered as if the treaty was designed purely to serve as an instrument of global civil society improvement, one that is too important to be frustrated in any way by others concerned about national sovereignty, security, and business interests, and/or the principle of individual right to armed self-defense.
The speakers were clearly frustrated with the draft ATT, and the negotiations process to date. It was not clear if this was indicative of just a distaste for the messy multilateral reality of accommodating diverse state interests, an acquired disdain for those diplomats and delegations guided more by how the world is rather than how the world should be, or both.
Yet the mood was not entirely down. The room became guardedly positive when talk turned to the taking the ATT negotiation process outside the UN, to “do it right” as Mr. Giacca said on the Geneva Academy ATT Legal Blog post that was projected onto the wall behind the stage during the news briefing.  This discussion thread developed in response to a question about the probability of Mexico, for example, leading a push to take the ATT outside the UN.
In response to this question, Dr. Clapham reframed the ATT as a once in a lifetime opportunity to save humanity from rights abuses, and implied that he and others like Dr. Keith Krause (the Founding Director of the Small Arms Survey, also seated in the audience) were hoping to get a good ATT done “on their watch.”
But Dr. Clapham acknowledged a certain level of fatigue may set in and that diplomats and some humanitarian groups might just settle for a lowest common denominator to get the ATT done. He went on to state however that “there’s a good chance, that if people realize they are going to get something which is worse than nothing…and if the Mexican leadership…has the stomach for this, it could get taken outside the UN.” He went on to say this would allow for an ATT text to be approved “with only a two-thirds majority and we’d arguably get a much better text.” Sarah Parker, and Gilles Giacca also commented on this situation as well.
The discussion got pessimistic again when Dr. Krause actually took the floor to make comments about Article 4 and the national assessment provisions. He essentially declared that the draft ATT, without fundamental changes, could result in a “pretty instrument that actually doesn’t change anything that actually happens in the world.” The reasoning being that weapons transfers would be subject to national assessment without any meaningful way for non-governmental organizations and other states to legally challenge a State’s own assessment process and decisions to export/transfer arms abroad, and this, in his words, would be “tragic.” Dr. Krause seemed to offer that another good reason to take the ATT outside the UN system would be for “limiting the scope of malicious interpretation” of the ATT by state parties.
Sarah Parker, who works for Mr. Krause at the Small Arms Survey, then explained how provisions for increased accountability and transparency on national assessment could be added through an implemented “ATT system” when the “political climate” was better, eventually, after countries become “more comfortable” with the ATT’s obligations. She elaborated that a State’s own national assessment decisions could be made subject to legal challenges in international courts.
Dr. Clapham even suggested how reports from Amnesty International and Human Rights Watch could eventually precipitate court-ordered injunctions halting government arms exports / transfers provided that campaigners and advocates first help bring about appropriate controlling national legislation. Dr. Clapham and Ms. Parker were presumably referring to more politically open states only, and the United States especially.
At the end, Ms. Parker importantly clarified that the ATT is not about creating a new tier of illegal transfers. Rather, “the ATT is introducing a new tier which is where [some] arms transfers are considered irresponsible, and therefore illegal.”
Dr. Clapham, Mr. Giacca, Dr. Krause, and all seemed hopeful for an ATT negotiated outside the UN system (i.e. without consensus rules, with fewer countries required for an ATT to enter into force, with higher standards, broader scope, better text overall etc).  Ironically for them and like-minded partners at the ICRC, Oxfam, and Saferworld, realizing these hopes now seems best assured if nations don’t reach consensus at the UN ATT Conference in March.
Will humanitarian rights groups and sympathetic state delegations help move the UN ATT Conference talks forward by consensus, or will they act to kill consensus themselves?
Deliberately killing consensus will hit the ATT reset button and would be hypocritical at the very least, particularly since such groups were the first to accuse the United States and others of doing this in July.  Regardless of who might kill consensus in March, doing so will certainly lead to further institutional division within the international system. With Syria now in a full civil war, and the risks of major regional conflict accelerating, more division seems the last thing the world now needs.
The downloadable audio for this conference is just under 53 minutes and 7MB. It is complete except for the first few minutes of introductions. The only edits made to the audio file were to enhance voice and minimize noise. This said, there are some points where noise may make it difficult to clearly understand speakers. You can download it here.
00:00 – 05:47 | Presentation by Gilles Giacca
05:48 – 20:18 | Presentation by Dr. Andrew Clapham
20:19 – 21:04 | Question 1 and response (on the United States creating the “balancing problem”)
21:05 – 24:13 | Question 2 and response (on violence against women provisions)
24:14 – 26:41 | Question 3 and response (on implications for private military companies)
24:42 – 27:37 | Question 4 and response (on conflicts between an ATT and international law)
27:38 – 33:13 | Question 5 and responses (on taking the ATT outside the UN system)
33:14 – 34:25 | Question 6 and responses (on individual and business applicability)
34:26 – 36:15 | Question 7 and comment by Keith Krause (on national assessments)
36:16 – 39:09 | Dr. Clapham response to Keith Krause (on national assessments)
39:10 – 41:02 | Sarah Parker comments to Keith Krause (on national assessments)
41:03 – 42:08 | Dr. Clapham second response to Keith Krause (on national assessments)
42:09 – 44:43 | Question 8 and responses (on the definition of authorization)
44:44 – 52:06 | Question 9 and responses (on legitimating the arms trade and exporting to third parties)
52:07 – 52:51 | Dr. Clapham clarification about transfers to third parties, and close
About The Author
Jeff Moran, a Principal at TSM Worldwide LLC, specializes in the international defense, security, and firearms industries. Previously Mr. Moran was a strategic marketing leader for a multi-billion dollar unit of a public defense & aerospace company, a military diplomat, and a nationally ranked competitive rifle shooter. He is currently studying international law of armed conflict with the Executive LL.M. Program of the Geneva Academy. Earlier this year he completed an Executive Master in International Negotiation from the Graduate Institute of Geneva. Mr. Moran also has an MBA from Emory University’s Goizueta Business School and a BSFS from Georgetown University’s Walsh School of Foreign Service.
 The first session of the UN ATT Conference was held from 3 -28 July and ended with no action on the final draft treaty dated 26 July 2012. A .pdf version of this draft ATT is available here.
 The news briefing was open the general public and members of the press were present. No statements were made off the record. The announcement for this news briefing is here. The Geneva Academy of International Humanitarian Law and Human Rights website is here. According to the back of the briefing cover, the Geneva Academy “provides post-graduate teaching, conducts academic legal research, undertakes policy studies, and organizes training courses and expert meetings;” and “concentrates on the branches of international law applicable in times of armed conflict.” A .pdf of the Academy Briefing is available here.
 The stated authors of the briefing acknowledge collaboration from Roy Isbister, Claire Mortimer, and Nathalie Weizmann on the front inside cover of the Academy Briefing. These individuals are well-known representatives of Saferworld, Oxfam, and the ICRC respectively. While a disclaimer states the views expressed “do not necessarily reflect those of the project’s supporters or of anyone who provided input to, or commented on, an earlier draft,” previous public statements by these individuals indicate a strong concurrence with the briefing by these individuals and their respective employers. The authors also acknowledge collaboration with Dr. Gro Nystuen, an Associate Professor of International Humanitarian Law/the Law on Armed Conflict at the University of Oslo and Professor at the Defence Staff University College in Oslo. Dr. Nystuen also directs the Nuclear Weapons Project (NWP) of the International Law and Policy Institute (ILPI), an expert advocacy initiative focused on how to ban nuclear weapons. A .pdf about the NWP is available here. The Small Arms Survey (SAS) is an expert advocacy/research organization guided by the assumption that “the proliferation of small arms and light weapons represents a grave threat to humanity.” According to their website, the SAS collaborates on projects such as the Academy Briefing No. 2 for the benefit of “for policy-makers, analysts, and activists around the world.” A .pdf on the SAS mission is available here. Finally, the authors also acknowledged contributions from the Swiss Federal Department of Foreign Affairs as well.
 A draft resolution before the First Committee of the United Nations is available at here.
 Mexico is most likely to lead the effort to reset the ATT negotiations outside the United Nations based on its prior statements and actions during ATT negotiations process since 2009. At the conclusion of the UN ATT Conference in July, they spoke on behalf of 90 countries signaling a clear willingness represent the interests of other like-minded states. A .pdf of this statement is available here.
 “Academy Briefing No. 2: The Draft Arms Trade Treaty.” Geneva Academy of International Humanitarian Law and Human Rights. 30 October 2012. Page 31.
 Ibid., page 23.
 Ibid., page 23.
 Ibid., page 25.
 Mr. Giacca made reference to the problem of consensus rules and the US insistence on them in his remarks. A .pdf of the press statement announcing the US support for the ATT negotiations with consensus rules is available here. Dr. Clapham specifically identified the US as creating the balancing problem when answering the first question from the audience. You can hear this starting at 20 minutes and 19 seconds in the audio file referenced above.
 A .pdf of the blog post presented during the news briefing is available here.
 Among the people making comments at the news briefing, Ms. Parker was alone in declaring her preference for a treaty by consensus through the UN system.
 Here are links to press releases from Reuters, Oxfam, Amnesty International, and Control Arms. Sources last accessed 5 November 2012.
First Published: 5 November 2012
Last Updated: 9 November 2012
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