The difference a word makes: the use of unequivocal language in the ATT
The Arms Trade Treaty (ATT) must contain the strong and unequivocal language of “shall” or “shall not” which makes clear the obligation to act or refrain from acting in specific ways. This is particularly important if certain types of transfers based on arms transfer criteria are to be prohibited, as this language clearly determines the content of the obligation. It is only then that strong and unequivocal obligations on States Parties will be created.
An ATT that is mandated to be “a legally binding instrument on the highest possible common international standards” must use this language linked to the most comprehensive criteria.
Consistent with General Assembly Resolutions that established this process, Ban Ki Moon underlined the fundamental purpose of the ATT at the start of the Conference: “Our common goal is clear: a robust and legally binding Arms Trade Treaty that will have a real impact on the lives of those millions of people suffering from the consequences of armed conflict, repression and armed violence”.
A lower standard fails to achieve these purposes, and undermines existing international humanitarian and human rights law.
Many arms transfer instruments use “shall” or “shall not” to prohibit or deny transfers on the basis of specified criteria, including where an assessment determines that those arms may be used for violations of international human rights law and international humanitarian law. (cf- The Nairobi Protocol Best Practice Guidelines (p25-6), the EU Common Position (Article 2), the OAS Model Regulations for the Control of Brokers of Firearms (Article 5) and the Central African Convention for the Control of SALW (Article 5)).
Clear language is better for trade because it enables all parties to rely on and follow the same rules and common framework. This ensures efficiency and legal certainty, and avoids numerous debates about treaty interpretation. It is also easier to defend legal transfers if the language is clear. States will be able to rely on unequivocal language to show that they are in compliance with the legal framework.
The simple inclusion of “shall” or “shall not” is not a victory in itself. In the context of the criteria/parameters section, the strength of using “shall” can be severely watered-down depending on the language following after it. While “shall” is unequivocal, states should be wary of attempts to use “shall” followed by an exclusion, qualification or condition as these usually remove the strength of the prohibitive language.
The language of “shall” or “shall not”, although strong, is insufficient unless it is paired with equally strong language in the body of the treaty.
 UNGA Resolution 64/48, 2 December 2009.
This blog was written by Stanzie Bell who is currently working with Oxfam GB for theArms Trade Treaty Legal Response Network during the Arms Trade Treaty negotiations in New York. It was produced with input from lawyers in ATT Legal.
A4ID has been assisting Oxfam GB by sourcing lawyers to provide pro bono legal support to the Arms Trade Treaty Legal Response network during the treaty negotiations.
About ATT Legal
Control Arms is a coalition of NGOs that support a robust and effective Arms Trade Treaty to curb illicit transfers of arms and arms brokering.
The ATT must prohibit the transfer of arms where there is a substantial risk that the arms may be used, for example, to commit or facilitate serious violations of human rights and international humanitarian law or undermine socio-economic development.
ATT Legal is a legal response network set up for the Arms Trade Treaty negotiations. It is a global network of expert lawyers – both practising lawyers and legal academics. ATTL is particularly keen to assist countries who do not have ready access to legal advice.
ATT legal has addressed questions on a wide range of issues related to the ATT and have produced short briefing notes on various topics including: definitions of key treaty terms; legal analysis of the scope of activities and items necessary for an effective ATT and UN procedure (such as the rights of participation accorded to observer states and entities as well as the participation status of delegates under the provisional rules of procedure).
Recent requests have concerned the number of ratifications typical for an international treaty; an assessment of international assistance provisions in international trade treaties and the effect of internal trade agreements on the ATT. We have also been working on more specific advice concerning the structure of the ATT and draft treaty language.
All of the legal advice is free and confidential.