27 August 2012

Legal eagle

by Dr. Robert Zuber, Global Action to Prevent War
In the period between the unsuccessful conclusion of the arms trade treaty (ATT) negotiating conference and the beginning of this UNPoA Review Conference, there has been much discussion in the halls of the UN about the ‘relative merits’ of what are often seen as related processes.

For many diplomats seeking to make the best investment for their home countries, the ATT’s ‘legally binding’ framework is the option of choice. For these diplomats, treaties take precedence over frameworks. This is in part based on the expectation (and also the hope) that treaties equally obligate larger and small states. In an international system characterized by such dramatic power imbalances, anything that promises to hold states in mutually binding (and even mutually supportive) obligations is a most welcome development. 

Regarding these particular ATT negotiations, there was the added dimension of some (quite justifiable) longing among diplomats and within the disarmament community for a ‘victory’ that can justify long weeks of deliberations and negotiations in an area of the UN’s work that is vitally important but that has demonstrated little capacity for progress in recent years. 

If we were forced to choose ourselves (and we would prefer not to), the preference for Global Action to Prevent War (GAPW) is for functionally over legality. While the UN has a number of treaties and treaty bodies that have produced important results—the Rome Statute (ICC), the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child all come to mind in this context—there is no necessary correlation between the legal and the functional. UN-brokered obligations that are both legal and functional are highly prized—but obligations that have legal sanction but are often filled with enforcement loopholes. We suspected that the ‘final’ treaty language proposed at the end the ATT negotiations was heading in this direction. Such instruments can thus create expectations that lead to cynicism, not only regarding efforts to resolve issues such as illicit arms transfers, but even regarding the legitimacy of the UN’s security system. 

Reflecting on the ATT process, we concluded that a serious commitment to action without equally serious standards and mechanisms of implementation and assessment raises more doubts than it addresses. A treaty process can institutionalize political commitments under the right circumstances, but it can also carelessly raise expectations that produce more skepticism than enthusiasm. 

Given the dangers of ‘weak’ treaty processes, during this two week Review Conference, we would do well to keep a vigilant (‘eagle’) eye out for the many functional successes that can be attributed to the UNPoA. States in all global regions are working at stockpile management, marking and tracing, record keeping, and communications, border, and harbor control, destruction of illicit arms, and other tasks with the support of other governments, UNODA regional offices, key NGOs, and other stakeholders.   

In this spirit, governments are urged to share their success stories as well as their policy preferences, to tell us what they have to celebrate on small arms control as well as their concerns in this area, to highlight their contributions and commitments to the UNPoA process as well as their capacity needs. Capacity support is the oil that lubricates UNPoA implementation, and we would be wise to learn as much as we can—in formal UNPoA sessions as well as in the Group of Interested States meetings and at RevCon side events—about the many ways in which governments are helping each other to solve difficult challenges in controlling illicit arms flows through technology and communications, consulting guidance, direct cash investments and more.

From the Andean region to Central Africa, GAPW and other groups have seen first-hand some of the many hopeful developments that have helped dry up sources of illicit weapons, ensure more stability and transparency in state security sectors, and promote more safety on our streets. In the days to come, we will hopefully have many stories to convey about the ways in which a Programme of Action is leveraging measureable results towards ending the scourge of illicit small arms.  

But for now, it is sufficient to reinforce an important point: while treaties establish obligations, functionality defines successes. In the case of the UNPoA, functionality is a product of both political will and generosity by states, acts that are encouraged but not legally-binding. There is much to improve about how the UNPoA does its business, to be sure, but also much to celebrate.   

In the aftermath of unsuccessful (for now) ATT treaty negotiations, we would do well to focus our UNPoA attention during these two weeks on ways to increase the functionality of a process that has demonstrated in many parts of the world its capacity to stem the flow of illicit weapons and reduce prospects for arms-related violence.

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