Statement by Mr James Potter, Office of International Law in Australia's Attorney-General’s Department to the Preparatory Committee for the United Nations Conference on the Arms Trade Treaty, as delivered on 1 March 2011.
Thank you Mr Chairman
The Australian delegation believes that the Chairman’s non-paper provides an excellent basis on which to focus our discussions today on parameters, being the criteria specified in the proposed treaty to be used by States when deciding whether to authorise an arms transfer.
Importantly, the non-paper distinguishes between parameters which would result in an automatic denial of a transfer and parameters which would not result in an automatic denial but which should nevertheless be taken into account by States as part of a risk assessment conducted when deciding whether to authorise a transfer.
Australia believes such a structure is appropriate.
Paragraph A of the non-paper sets out parameters which would result in automatic denial, by providing that a State Party shall not authorise a transfer if the transfer would violate that State Party’s international obligations or commitments, such as arms embargoes imposed by the Security Council, other arms embargoes or other treaty obligations. Clearly, this is appropriate, as a State should not approve a transfer which would be in violation of international law.
Paragraphs B and C of the non-paper set out parameters which a State Party should take into account in performing a risk assessment on a potential transfer of arms, by providing that a State Party shall not authorise a transfer of arms if there is a substantial risk that the transfer would have certain consequences or the arms would be used for particular undesirable end uses.
This includes transfers of arms which would be used in serious violations of international humanitarian law and international human rights law, or transnational organised crime, or transfers which would undermine peace or security, impair poverty reduction or development or contribute to a pattern of persistent corruption in the recipient State.
Australia believes these are all important criteria to be taken into account in deciding whether to authorise an arms transfer.
Consistently with the notion that the Arms Trade Treaty should set out minimum requirements which States are free to improve upon, the criteria set out in the non-paper should be minimum criteria, and States are free to impose stricter requirements than those specified when deciding whether to approve a transfer.
The non-paper also makes clear that it is States themselves that are to evaluate the criteria set out in the non-paper, and in Article II provides guidance to States Parties on what sources of information should be used to assess the parameters.
The parameters proposed are also clear, simple and consistent. Australia believes we should be wary of including further criteria which are not clearly identifiable and demonstrable.
Mr Chairman
Although Australia agrees broadly with the structure and content of the non-paper, Australia considers that some amendments and additions to the non-paper could be useful.
For example, the second sentence of the chapeau in paragraph Roman One, which imposes an obligation on States Parties to take into account certain criteria, should perhaps apply to Paragraph A only, to avoid any inconsistency with the separate chapeaus to paragraphs B and C, which refer to ‘substantial risk’.
Australia also considers that there is some overlap between paragraphs B and C. For example, sub-paragraph B 2 and sub-paragraph C 3 both refer to the use of arms in the commissions of international crimes or violations of international law. To simplify the drafting of the proposed treaty, paragraphs B and C could be combined, as both paragraphs set out criteria for States to consider when deciding whether or not to authorise a transfer of arms.
Australia also agrees with other delegations that that part of the parameter in paragraph A 1 referring to regional or sub-regional arms embargoes should not apply universally to all States.
Thank you Mr Chairman