We cannot and do not support Bill C-47 in its current form

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Remarks to the House of Commons Standing Committee on Foreign Affairs and International Development— November 2, 2017

By Cesar Jaramillo, Executive Director, Project Ploughshares

Good afternoon. My name is Cesar Jaramillo and I am the executive director of Project Ploughshares. Thank you very much for the kind invitation to address this Committee.

For decades, efforts to better regulate illicit or irresponsible arms exports and to strengthen military export controls have been a key focus of the activities of Project Ploughshares. We were strong advocates of the landmark international Arms Trade Treaty long before its adoption, and have since underscored the importance of full compliance as the ultimate measure of the treaty’s effectiveness.

Published in The Ploughshares Monitor Volume 38 Issue 4 Winter 2017 

We were greatly encouraged by Canada’s decision to join the ATT after a highly conspicuous absence, and have engaged in a constructive spirit with colleagues at Global Affairs Canada on this important file. However, while our desire to see Canada become a fully compliant state party to the Treaty has not changed, our expert assessment is that the proposed legislation—i.e., Bill C-47—would not enable Canada to meet the requirements and expectations of the Arms Trade Treaty.

We have profound concerns about substantial shortcomings of the Bill that make it impossible for us to recommend it before this Committee. For absolute clarity: we cannot and do not support Bill C-47 in its current form. This is a position shared by a host of Canadian groups from the disarmament, human rights, and development fields—some of which have testified before the Committee on this very issue.

Before I address some of our major concerns about the Bill, I would like to underscore the singular importance of this opportunity to review Canada’s military export controls regime. It is indeed a rare occurrence that may not happen again in years or decades.

As such, we encourage all stakeholders, including members of this Committee, to seek strong, effective legislation for Canadian arms exports that is truly in line with modern expectations of rigour, accountability, and transparency in the global arms trade, including, of course, full compliance with the ATT.

A key concern about the proposed legislation is that it does not address the exemptions that have long been afforded to Canadian military exports to the United States.

Under current practice, left unchanged by Bill C-47, Canadian military exports to the United States are exempted from licensing and reporting requirements applicable to every other destination. These exemptions are utterly incompatible with the letter and spirit of the Arms Trade Treaty.

Even though we have long considered such an arrangement to be problematic and contrary to expectations of transparency around Canada’s arms exports, this loophole has become especially egregious as Canada readies to accede to the Arms Trade Treaty.

We are aware that the position of Global Affairs Canada is that the exemptions granted to U.S.-bound exports are consistent with the Arms Trade Treaty. For several reasons, we must express our disagreement with this view.

The Arms Trade Treaty, in its first article, calls for the “highest possible common international standards.” To be sure, there are two interrelated and equally important elements in this requirement: highest possible international standards, and common international standards. Yet the arrangement with the United States neither constitutes the highest possible standard nor is it common to the standards applied to others.

Likewise, Article 2 of the ATT is explicit about its applicability to all military exports covered under the treaty, and Article 5 calls for the Treaty to be implemented in a consistent, objective, and nondiscriminatory manner.

We find it hard to see how “all” could be interpreted to mean anything other than the totality of Canadian exports, including those destined for the United States. Further, the unique treatment afforded to the United States is out of line with the expectations of consistency, objectivity, and nondiscrimination specified in Article 5.

Such exemptions would be incompatible with ATT obligations, regardless of the recipient. In the case of the United States, they are especially suspect.

The United States is the largest exporter of weapons and military equipment in the world, and Canadian components can be incorporated into systems in the United States and then exported to third parties without requiring further authorization from Canada.

The United States is also, by far, the largest recipient of Canadian military goods. Project Ploughshares estimates that Canada exports military goods worth as much as $2-billion to the United States annually—typically more than half of total military exports. So, with Bill C-47 in its current form, the majority of Canadian military exports will neither be reported nor subject to export permit requirements, even after Canada joins the Arms Trade Treaty.

Critically, the United States is not an ATT state party, and is not expected to become one in the foreseeable future. Canada, on the other hand, will be a state party and the expectation is that all its arms export regulations will be entirely consistent with the provisions of the treaty, including those related to licensing and reporting obligations.

Further, a widely shared goal of states parties is the universal adoption of the ATT. And it is hard to see how Canada can contribute to that objective when it offers laxer conditions to a non-state party than it does to those states that have agreed to be bound by the treaty’s obligations.

Another area of great concern relates to the way in which Bill C-47 addresses Articles 6 and 7 of the treaty, which refer, respectively, to Prohibitions and Risk Assessments.

In this regard, Global Affairs Canada has indicated that “Canada’s current export permit considerations are consistent with all these elements as outlined in the ATT, but are established as a matter of policy, not law.” GAC has also stated that “the critical element was the need to create a legally binding obligation for the minister to take the ATT assessment considerations into account in deciding whether to issue an export permit.”

This characterization leaves the impression that the only measure necessary for Canada to be in full compliance with Articles 6 and 7 is to establish a legal obligation for the minister to take certain factors into account when assessing export permit authorizations. In reality, however, the Arms Trade Treaty establishes a higher standard than merely “taking into account” certain considerations when deciding on export permit applications.

The ATT establishes categorical prohibitions on certain arms exports depending on the outcome of an objective risk assessment process, and includes unambiguous wording to this effect when referring to exports that a state “shall not authorize.” Canada’s export controls regime lacks any such obligation or wording—whether in policy or in law.

The obligation for the Minister to simply consider certain factors does not suffice to meet Treaty standards, even if established as a matter of law. In the absence of language that explicitly requires the denial of certain export permits, the Minister will have virtually unchecked discretion to authorize any and all military exports, however questionable the recipient—or however damning the risk assessment—as long as he or she indicates that all factors were “taken into account.”

We are further concerned that, under the current approach taken by Global Affairs Canada, the details related to these critical areas will be left to subsequent regulations, which are to be known only after the legislation is enacted.

Of course, we do not oppose in principle the notion that certain aspects of a Bill can be and, in other contexts, have been, left to be addressed by subsequent regulations. What we find problematic is that aspects related to some of the most crucial dimensions of the ATT—Prohibitions and Risk Assessment—would be a matter of regulations and not law.

Another area that the Bill fails to address has to do with the lack of harmonization between the Department of National Defence and Global Affairs Canada vis-à-vis risk assessment processes for arms exports. While both departments will need to comply with the obligations of the ATT once Canada becomes a state party, we are concerned that having two separate risk assessment procedures may lead to inconsistent standards and decisions concerning where Canadian military equipment may end up.

I had earlier pointed to the obligation contained in Article 5 of the ATT to implement Treaty provisions in a consistent manner, then in the context of the exemptions given to U.S.-bound exports. The requirement for consistency in the implementation of the treaty is also applicable to the dual risk assessment processes at the Department of National Defence and Global Affairs Canada.

To finish these remarks, let me reiterate that we remain very much supportive of Canada’s becoming a fully compliant state party to the Arms Trade Treaty. Unfortunately, however, Bill C-47 falls short of meeting the spirit, objectives, and specific provisions of the ATT and thus we cannot support it in its current form.

Thank you very much for your attention. I would very much welcome comments or questions related to these remarks.

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