International treaty examination of the Arms Trade Treaty

Transcription

1 International treaty examination of the Arms Trade Treaty Report of the Foreign Affairs, Defence and Trade Committee Contents Recommendation 2 Introduction 2 Ratification in time for first meeting 2 Appendix A 3 Appendix B 4

2 International treaty examination of the Arms Trade Treaty Recommendation The Foreign Affairs, Defence and Trade committee has conducted an international treaty examination of the Arms Trade Treaty, and recommends that the House take note of its report. Introduction The Arms Trade Treaty was adopted by the General Assembly of the United Nations on 2 April New Zealand signed the treaty on 3 June 2013, and is one of 118 signatories. Of these 118 states, 41 have ratified the treaty. The treaty regulates the international trade in conventional arms. Ratification in time for first meeting The first meeting of the countries that have ratified the treaty will be held in Mexico in early We support ratifying the treaty, in line with our general commitment to security and disarmament goals, and with our reputation in the United Nations. We believe it is important that New Zealand ratifies the treaty urgently, so that it can attend the first meeting of the nations that have done so. Decisions made at the meeting will shape the future of the treaty. New Zealand is regarded as an authoritative voice on the treaty, and we consider it important that it be represented at the meeting to influence these key decisions. While existing legislation in New Zealand ensures that it complies with most of the requirements the treaty imposes, we understand that further legislation may be required to introduce a framework to regulate comprehensively the brokering of conventional arms. We understand that the passage of this legislation does not have to precede ratification, and an interim voluntary registration scheme for New Zealand brokers will meet the requirements of the treaty for the purposes of ratification. However, legislation should be prepared for introduction to the House as soon as practicable. We consider that the treaty should be ratified urgently, and any necessary implementing legislation introduced later. The National Interest Analysis for the treaty is appended to this report. 2

3 Appendix A Committee procedure The international treaty examination of the Arms Trade Treaty was referred to the committee on 17 June We met on 26 June and 3 July 2014 to consider the treaty. Committee members John Hayes (Chairperson) Hon Phil Goff Dr Kennedy Graham Hon Tau Henare Dr Paul Hutchison David Shearer Lindsay Tisch 3

4 Appendix B National Interest Analysis Arms Trade Treaty 1 Executive summary The Arms Trade Treaty is a landmark global instrument that regulates the international trade in conventional arms, seeking to prevent the illicit trade in such arms or their diversion. New Zealand signed the Treaty in June 2013 and it is proposed that New Zealand ratify the Treaty by depositing an instrument of ratification after all necessary domestic processes are completed. Ratification of the Treaty by New Zealand will contribute to the establishment of an effective international regime governing the trade in conventional arms and will also signal New Zealand s firm commitment to addressing the devastating impact that illicit arms transfers have on regional and international security and development, particularly in vulnerable areas like the Pacific. Ratification will also enhance New Zealand s longstanding reputation as a leading voice on international humanitarian and arms control issues. No new legislation is required for New Zealand to ratify the Treaty. Under existing legislative and regulatory frameworks New Zealand already complies with, or is able to implement, most of the obligations in the Treaty, including the key requirement to establish a national control regime for exports of conventional arms. The exception to this is that New Zealand has no existing legislative framework to comprehensively regulate the brokering of conventional arms. While it is intended that New Zealand introduce more comprehensive controls on arms brokering, an interim voluntary registration scheme for New Zealand-based brokers will meet the requirements of the Treaty for the purposes of ratification. 2 Nature and timing of the proposed treaty action New Zealand signed the Arms Trade Treaty (ATT) in New York on 3 June It is proposed that New Zealand ratify the ATT by depositing an instrument of ratification with the Secretary-General of the United Nations (UN) in accordance with Article 21 of the ATT. The ATT is not yet in force. In accordance with Article 22(1), the ATT will enter into force ninety days after it has been ratified by 50 States. It is expected that this will occur in the second half of If New Zealand is not among the first 50 States to deposit its instrument of ratification, the ATT will enter into force for New Zealand ninety days after the date of deposit in accordance with Article 22(2). It is proposed that New Zealand deposit an instrument of ratification after all necessary domestic processes are completed. It is not proposed that New Zealand s ratification extend to Tokelau at this time. 3 Reasons for New Zealand becoming party to the treaty The ATT was adopted on 2 April 2013 by the overwhelming majority of States at the 67th session of the UN General Assembly. Its adoption marked a victory for those states, 4

5 including New Zealand, who remained committed throughout years of negotiations to the introduction of legally binding controls on the international trade in conventional arms. The ATT represents a significant step forward and will go some way to meeting New Zealand s goal of mitigating the serious security and humanitarian consequences of the illicit trade in conventional arms. The ATT does not explicitly exclude from its coverage travel by gun owners with their weapons for recreational purposes, but recognises the legitimate trade and lawful ownership of certain conventional arms for recreational and sporting activities. In these respects, it meets New Zealand s core negotiating objectives as mandated by Cabinet. New Zealand s timely ratification of the ATT would be a fitting conclusion to our active engagement in its negotiation and agreement, which included our early signature of the ATT on 3 June 2013 (as mandated by Cabinet in CAB Min (13) 15/4). It would signal New Zealand s firm commitment to addressing the devastating impact that illicit arms transfers have on regional and international security and development, particularly in vulnerable areas such as the Pacific. It also would be consistent with our broader efforts on humanitarian and arms control issues, including our membership of all the major international export control regimes. New Zealand s ratification of the ATT, if one of the first 50, will help advance its entry into force, bringing forward the date at which we would expect concrete benefits to national and regional security. Our ratification would be welcomed by New Zealand s NGOs and by the international community, and would reinforce New Zealand s reputation as a leader on global humanitarian and arms control issues. New Zealand s ratification of the ATT will also be consistent with the approach of likeminded parties to the Treaty Australia s ratification of the Treaty is imminent. 4 Advantages and disadvantages to New Zealand of the treaty entering into force and not entering into force for New Zealand The advantage of the ATT entering in force for New Zealand is that the ATT will assist New Zealand and the international community in the development of a global regime that regulates the international trade in conventional arms and prevents the illicit trade in such arms, or their diversion. New Zealand has a long-standing reputation as a leading voice on international humanitarian and arms control issues. This profile has been reinforced by our constructive engagement throughout the negotiations on the ATT, our early signature of the text, and our subsequent sponsorship of model implementing legislation for use particularly in the Pacific. A decision by New Zealand not to ratify the ATT would be inconsistent with this approach and would have a negative impact on our credibility on humanitarian and arms control issues particularly in light of our existing membership of related export control regimes and our ongoing engagement in relevant arms control initiatives including the UN Programme of Action on Small Arms and Light Weapons. There are also disadvantages to New Zealand in not ratifying the ATT until after it has entered into force. The first Conference of States Parties to the Treaty is expected to take place in Mexico as early as February 2015, and will be required to decide a number of important procedural and administrative issues including the Rules of Procedure for meetings of States Parties (for example, whether the regime will be best served by enabling 5

6 decisions by a vote rather than by consensus). It will also decide on the location and financing of the Treaty Secretariat. Only those states which have ratified the ATT will be able to take part in decision-making at that meeting. It is in New Zealand s interests to be able to play a constructive and influential role in shaping the direction of the ATT from its inception and to take part in the very important decision-making, which will take place at the first Conference of States Parties to the Treaty. 5 Legal obligations which would be imposed on New Zealand by the treaty action, the position in respect of reservations to the treaty, and an outline of any dispute settlement mechanisms The object and purpose of the ATT, set out in Article 1, is to establish the highest possible common international standards for regulating the international trade in conventional arms and to prevent and eradicate illicit trade in such arms, or their diversion, for the purposes of contributing to peace and security, reducing human suffering and promoting cooperation, transparency and responsible action by States Parties. Article 2 articulates the scope of the ATT as the international trade in conventional arms. Conventional arms are defined in Article 2(1) as comprising: (a) battle tanks; (b) armoured combat vehicles; (c) large-calibre artillery systems; (d) combat aircraft; (e) attack helicopters; (f) warships; (g) missiles and missile launchers; and (h) smalls arms and light weapons. Some of the obligations in the ATT also extend to ammunition, and to parts and components of conventional arms so that States Parties cannot circumvent the ATT obligations by exporting or importing a number of separate shipments of unassembled parts and components for a conventional weapon. Article 2 explicitly excludes from the scope of the ATT any international movement of conventional arms by, or on behalf of, a State Party for that State Party s use provided that those arms remain under that State Party s ownership. This provision is intended to exclude from the ATT the supply of arms and equipment to a State Party s military or police stationed abroad provided that ownership of such arms and equipment is not subsequently transferred to a third party. Should such weapons and equipment be transferred to a third party, the ATT would then apply. In its Preamble, the ATT also recognises the legitimate trade in, and lawful ownership and use of, certain conventional arms for recreational, cultural, historical and sporting purposes. This reflects an acknowledgment by the States that the ATT does not look to place further restrictions on the international movement of certain conventional arms for these legitimate purposes. The key obligations in the ATT are focused on export controls as follows: Article 6 requires that exports of conventional arms, ammunition and related parts and components be prohibited outright in three situations: where the transfer would breach UN sanctions or other international obligations of the Party; or any export where it is known at the time of authorisation that the items would be used to commit genocide, crimes against humanity or war crimes. 6

7 Where an export is not prohibited by Article 6, Article 7 requires that all exports of conventional arms, as well as related ammunition and parts and components, must be authorised pursuant to a national control system, with a risk assessment being conducted before any authorisation is granted. Article 7 sets out a number of criteria that must be taken into account by States Parties as part of the risk assessment, including whether the conventional arms would contribute to or undermine peace and security, could be used to commit or facilitate serious violations of international humanitarian or human rights law or acts contrary to a terrorism Convention or a transnational organised crime Convention to which the State is party. The ATT also includes some obligations in relation to import controls although these are less prescriptive: Article 8 requires that imports of conventional arms should be regulated where a State Party considers such regulation to be necessary. Article 9 of the ATT requires each Party to take appropriate measures to regulate, where necessary and feasible, the transit and trans-shipment of conventional arms through its territory in accordance with international law. While the ATT does not define transit or trans-shipment, it is generally understood that transit involves goods passing through a third country (other than the country of export or import) without being unloaded; while trans-shipment involves the transfer of goods from one means of transport to another while in the territory of a third country. Article 11 of the ATT includes various obligations designed to prevent the illegal diversion of conventional arms. It requires that States Parties: Assess the risk of diversion before an export authorisation is granted and, if a risk is identified, establish mitigation measures. The ATT describes a range of illustrative measures available to States Parties and encourages cooperation and information sharing in order to prevent diversion. Take appropriate measures, pursuant to national laws if a diversion is detected. Article 10 of the ATT requires States Parties to take measures, pursuant to their national laws, to regulate brokering of conventional arms taking place under their jurisdiction. Brokering is not defined in the Treaty but is commonly understood to involve the bringing together of a seller and buyer of conventional arms in relation to a transaction that involves the international movement of those arms. The ATT suggests that measures to address brokering could include requiring brokers to register or obtain written authorisation before engaging in brokering. Finally, the ATT includes various information sharing, record keeping and reporting requirements. Importantly, the information sharing provisions explicitly permit State Parties to limit information disclosure in order to comply with domestic laws. The position in respect of reservations Article 25 of the ATT permits States Parties to make reservations at the time of signature, ratification, acceptance, approval or accession, unless the reservation is incompatible with the object and purpose of the ATT. It is not anticipated that New Zealand will lodge any reservations against the ATT. However, it is anticipated that New Zealand will submit an interpretative declaration in respect of the ATT at the time of ratification. This will put on record New Zealand s 7

8 intended approach to a number of ambiguities that remain in the final text of the ATT, regarding its scope and application. Outline of dispute settlement mechanisms Article 19 of the ATT provides that any disputes regarding the interpretation or application of the ATT are to be cooperatively resolved between States Parties through mutually consenting to negotiations, mediation, conciliation, arbitration, judicial settlement or other peaceful means. Measures which the Government could or should adopt to implement the treaty action, including specific reference to implementing legislation Under existing legislative and regulatory frameworks New Zealand is already implementing, or is able to implement, most obligations imposed by the ATT, but has no legislative framework to comprehensively regulate the brokering of conventional arms. It is intended that New Zealand establish a legislative basis to control brokering activities more comprehensively in conformity with the approach of key partners, including Australia. However, this need not be done in advance of ratification of the ATT (see below for further details) and it is accordingly assessed that no new legislation is required for New Zealand to ratify the ATT. However, some modifications to administrative procedures are required. These are set out in detail below. Exports In relation to exports, New Zealand already complies, through the New Zealand Strategic Goods list, with the key requirement of the ATT to have a national control system for exports, with a risk assessment being conducted before any authorisation is granted. This is implemented pursuant to cl 6 of the Customs Export Prohibition Order 2011 and s 56(2) of the Customs and Excise Act The Strategic Goods List regime already prohibits the export of all categories of conventional arms, ammunition and related parts and components within the scope of the ATT, unless an export authorisation has been obtained from the Secretary of Foreign Affairs and Trade. Export authorisations are only granted once a risk assessment has been completed by the Ministry of Foreign Affairs and Trade (MFAT). Currently, MFAT makes decisions on export permits according to a set of publicly available criteria. In practice, all the considerations required by Article 6 and 7 of the ATT are already part of the frame of reference used by MFAT in the authorisation process. However, not all of those considerations currently appear explicitly in the list of criteria. Accordingly, New Zealand s export authorisation risk assessment criteria will be updated to explicitly include all considerations required to be taken into account under Articles 6 and 7. The Strategic Goods List would also be updated so that it identifies the ATT as one of the international agreements implemented through the List. Imports In relation to imports, through the Arms Act 1983 (Arms Act), New Zealand already meets the requirement in Article 8 of the ATT to regulate imports of conventional arms where necessary. Pursuant to s 16 of the Arms Act, the following categories of conventional arms may not be imported into New Zealand without a permit from Police: small arms and light 8

9 weapons, missiles and missile launchers and large-calibre artillery systems. The import of other categories of conventional arms within the scope of the ATT (combat vehicles, attack helicopters, combat aircraft, battle tanks and warships) is regulated when the item is armed (for example, if a combat aircraft includes as an integral part any type of weapon or arm, it will need a permit from Police to import. However, if it is unequipped with arms or weapons, it will not.) While New Zealand does not regulate the import of all conventional arms within the scope of the ATT, the obligation in Article 8 is to regulate imports where necessary. In New Zealand's circumstances, it is only considered necessary to regulate the import of items that are armed and thus constitute a weapon. Therefore it is considered that this approach meets the requirements of Article 8. Transits and trans-shipments In relation to transits and trans-shipments, New Zealand already meets the requirement in Article 9 of the ATT to regulate transits and trans-shipments of conventional arms where necessary and feasible through the existing Customs and Excise Act regime. A specific regime regulating the trans-shipment of goods through New Zealand will come into force on 25 June It requires that all goods trans-shipped through New Zealand must obtain a specific trans-shipment permit and only allows trans-shipment to occur in certain designated areas. The new trans-shipment regime will apply to all conventional arms, ammunition and parts and components within the scope of the Arms Act. While there is no specific regulation of the transit of conventional arms through New Zealand territory, existing information seeking, boarding and searching powers under the Customs and Excise Act would be available to Customs (subject to compliance with international law, in particular the UN Convention on the Law of the Sea) if it appeared that a Customs offence was being committed. Diversion New Zealand already meets the ATT s requirements in Article 11 to assess the risk of diversion when an export authorisation is granted and, if necessary, establish mitigation measures. The existing Strategic Goods List assessment criteria include an assessment of the risk that goods could be diverted or on-sold to another user. Where a risk of diversion is identified, MFAT is able to impose conditions on the export, including enduser certification, to mitigate the risk of diversion. New Zealand also has existing powers under the Customs and Excise Act that would allow it to take appropriate measures should the diversion of conventional arms be detected in New Zealand territory. Accordingly, no further action is required to implement Article 11, although the Strategic Goods List assessment criteria will be amended so as to exactly mirror the ATT s requirements in relation to assessing the risk of diversion. Brokering Article 10 of the ATT requires each State to take measures, pursuant to its national laws, to regulate brokering of conventional arms taking place under its jurisdiction. While the sale of arms in New Zealand (i.e. arms dealing) is regulated under the Arms Act, there is currently no specific regulation in New Zealand of the brokering of conventional 9

10 arms. To enable New Zealand to ratify the ATT expeditiously, consistent with the requirement to take measures on brokering, an interim registration system for New Zealand-based brokers will be put in place without legislation. This would be administered by MFAT and initially would need to be voluntary. The system would provide MFAT with some information about the extent of brokering activities taking place in New Zealand, and would be consistent with the ATT s Article 10 guidance that regulation of brokering may include requiring brokers to register or obtain written authorisation before engaging in brokering. After ratification, it is intended that officials undertake additional work on implementation, notably to more comprehensively address brokering in a way that is consistent with international partners including Australia, with a view to introducing legislation to the House, at the latest, in Information sharing, reporting and recording requirements New Zealand already has the ability, through the Strategic Goods List regime, to comply with the ATT s reporting and recording requirements. To ensure that any disclosures are made in accordance with the Privacy Act, the application forms for import and export authorisations will be amended to include notice that information provided in the application may be released to the importing, exporting, transit or trans-shipment State, as relevant. 7 Economic, social, cultural and environmental costs and effects of the treaty action Because New Zealand already complies with the key obligations in the ATT in relation to export and import controls, ratification will not have any significant economic, social, cultural and environmental costs or effects for New Zealand. Because the ATT recognises the legitimate trade in, and lawful ownership and use of, certain conventional arms (i.e. small arms) for recreational, cultural, historical and sporting purposes, ratification of the ATT will not affect the current ability of New Zealand gun owners to travel with their weapons for legitimate purposes. New Zealand s ratification will help mitigate the serious security and humanitarian consequences of the illicit trade in conventional arms, and the devastating impact that illicit arms transfers have on regional and international security and development, particularly in vulnerable areas such as the Pacific. 8 The costs to New Zealand of compliance with the treaty The cost of making the administrative and regulatory changes required for implementation of the ATT, and any ongoing costs due to an increase in administration requirements following ratification, are likely to be minimal and able to be met within existing baselines. New Zealand s contribution to the financing of the Treaty Secretariat will be funded out of Vote Foreign Affairs and Trade s current appropriation, Subscriptions to International Organisations (in the 2013 financial year New Zealand s assessed contribution to similar bodies ranged from NZ$1,626 to NZ$10,174). 10

11 9 Completed or proposed consultation with the community and parties interested in the treaty action Throughout the negotiations on the ATT and in the period since its conclusion the New Zealand Government has maintained close contact with the range of New Zealand NGOs interested in this issue. Consultations have been undertaken with Oxfam New Zealand, Amnesty New Zealand, the New Zealand Red Cross, the Council for Licensed Firearms Owners (COLFO) and the Deerstalkers Association. Further, with the permission of the Minister of Foreign Affairs, civil society representatives were included in the New Zealand delegation to both Diplomatic Conferences where the ATT was negotiated. All NGOs and civil society consulted during the negotiations were supportive of New Zealand signing and ratifying the ATT. The following agencies were consulted in the drafting of this national interest analysis and support its conclusions: MFAT, New Zealand Police, New Zealand Customs Service, the Treasury, the Ministry of Justice, New Zealand Defence Force, Ministry of Defence, Ministry of Business, Innovation and Employment, and the Office of the Privacy Commissioner. 10 Subsequent protocols and/or amendments to the treaty and their likely effects There are no provisions in the ATT anticipating subsequent Protocols. The ATT provides for amendment under Article 20. Pursuant to this Article, amendments may only be first proposed for consideration at the Conference of States Parties six years after the entry into force of the ATT and thereafter every three years. The Conference of State Parties will adopt amendments by consensus wherever possible, or by a three-quarters majority vote. Amendments adopted by the Conference of State Parties will enter into force 90 days after a majority of States Parties (as at the time of adoption) have deposited instruments of acceptance with the Depositary. Amendments would not enter into force automatically: acceptance of any future amendments to the ATT would be subject to New Zealand s domestic treaty-making process. Withdrawal or denunciation provision in the treaty Article 24 allows a State Party to withdraw from the ATT by notifying the Depositary. Withdrawal will take effect 90 days after the receipt of the notification of withdrawal by the Depositary. However, a State Party that withdraws is not discharged from any obligations that arose under the ATT while it was a Party. Any decision to withdraw from the ATT would be subject to New Zealand s domestic treaty-making process. 11