The Wassenaar Arrangement and Legal Advisors

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Ms Ashley Müller: Welcome to the Geneva Centre for Security Policy Podcast. I’m Ashley Muller. This week’s episode explores some of the latest global issues affecting peace, security, and international cooperation. 

Ms Ashley Müller: The Wassenaar Arrangement was created to promote regional and international security and stability by adding export controls on conventional arms and dual-use goods and technologies. We discuss its functions with Ambassador Philipp Griffiths, Head of the Secretariat of The Wassenaar Arrangement.  And as decisions by global leaders have the potential to leave us questioning legal dimensions, we discuss the role of a legal adviser with former Judge Advocate General of the Candian Armed Forces, Maj General (retired) Blaise Cathcart.

Ms Ashley Müller: Ambassador Philipp Griffiths You are the Executive Secretary of the Wassenaar Arrangement. Can you explain how and why this export control regime was established and what it does?

Ambassador Philipp Griffiths: The Wassenaar Arrangement is in the intergovernmental information sharing and standard setting forum for the purpose of promoting responsibility and transparency in international transfers of conventional arms, and sensitive dual-use goods and technologies. It arose out of the former Coordinating Committee for multilateral export controls which existed from 1950 to 1994. After the end of the Cold War, there was an initiative to find a new forum that would look at export controls on a global basis to replace the old East West focus which was considered no longer appropriate and the search for a new forum took a couple of years and culminated in a declaration, which was issued in Wasilla, which is a suburb of the Hague in the Netherlands, in December 1995. And that explains the origin of the name. The Wassenaar Arrangement itself then became operational in 1996. With its seat in Vienna, at the invitation of the Austrian government and all the meetings, since except for one have been held in Vienna, with a small permanent Secretariat is based. There are, I would say three main streams of work one is agreeing collectively on the items that should require an export license at the national level and a great deal of effort is invested each year in ensuring that the fastener arrangement control lists are kept up to date and relevant. The second area is information sharing both a general and specific nature, for example, on transfer risks associated with conventional arms exports in different parts of the world as well as national reporting of certain transfers and denials of exports to countries outside the Wassenaar Arrangement. And the third strand of work. As I see it is agreeing on best practices, guidelines, elements and procedures to guide national implementation of export controls. Bearing in mind that national implementation is of course a national prerogative. The Wassenaar participating states agree on certain standards, but they take all licensing decisions are taken at the national level.

Ms Ashley Müller: You kindly contributed to our professional training course on implementation of the Arms Trade Treaty. What are the relationships between the Wassenaar Arrangement and the Arms Trade Treaty?

Ambassador Philipp Griffiths: The Wassenaar Arrangement and the Arms Trade Treaty have different histories and take different forms, but they share similarities of purpose both seek to promote the highest possible common standards for international transfers of conventional arms while not impeding legitimate trade, the Wassenaar Arrangement’s focus is on promoting transparency and responsibility in lift up transfers. In order to prevent destabilising accumulations of conventional arms as well as their acquisition by terrorists. The Arms Trade Treaty seeks to stop the illicit trade in conventional arms and their diversion to unauthorized end-users or end users, including in the commission of terrorist acts. So both the Wassenaar Arrangement and the Arms Trade Treaty seek to contribute to international security and stability by strengthening multilateral cooperation and confidence building among states there are areas of difference for example, the Wassenaar Arrangement represents a political commitment and works by consensus. The Arms Trade Treaty is obviously a treaty based organization, the Wassenaar Arrangement covers not only exports of conventional arms but also dual use goods and technologies and the arms covered by the western arrangement constitute a broader spectrum than is envisaged in the ATT. I think. Despite the differences, the goals of the arms trade treaty and the bassinet arrangement are aligned. And Wassenaar arrangement, participating states are very open to sharing their experience and expertise with other countries including those countries that are seeking to meet their ATT commitments. The Wassenaar Arrangement has an active outreach program, with the aim of helping other countries to strengthen their export control systems and Wassenaar Arrangement. participating states are also active both nationally and regionally in export control related in providing advice and assistance in that area.

Ms Ashley Müller: Sometimes developing countries accuse the industrialized countries of preventing their access to new technologies that would help their development. What to do reply to this?

Ambassador Philipp Griffiths: The Wassenaar Arrangement makes clear, this has been clear since its foundation that it is not directed against any state or group of states and that its work does not impede bonafide civil transactions. I think the Wassenaar Arrangement participating states go to considerable lengths in this respect. For example, it's reflected in their work on the control lists, where the technical specifications are set very precisely so as to subject only items of specific security concern to export licensing while allowing other items to be traded freely. And it should be remembered that export control does not mean that the export of an item is prohibited. It means only that it requires a license issued by the competent National Authority before being transferred. I think I think it's fair to say that the role of export controls in supporting international security from which all states benefit is increasingly widely accepted by the international community. I think UN Security Council Resolution 1540. And more recently, the Arms Trade Treaty have played an important role in this respect. All countries benefit when items of security concern do not fall into the wrong hands, including those of terrorists, and are not used to undermine regional and international stability. And in terms of economic interests, I think more and more countries are seeing the benefits of having an effective National Export Control System in terms of facilitating trade, including their access to sensitive imports, enhancing their access to imports as well as to foreign direct investment. I think going back to the Wassenaar Arrangement and the Arms Trade Treaty, the Wassenaar Arrangement has over the last 20 more than 20 years has built up a lot of a solid body of work, most of which is available on the Wassenaar Arrangement website. And it's accessible to any other country or industry for that matter that is interested in strengthening its export control systems. For their part. I think the Wassenaar Arrangement participating states will need to continue to use the Wassenaar Arrangement to further develop export control standards and enhance their implementation, thereby seeking to provide a lead by example, to the broader international community.

Ms Ashley Müller: Earlier Mr Tobias Vestner, Head of Security and Law at the GCSP spoke with Maj Gen (Retd) Blaise Cathcart, former Judge Advocate General of the Canadian Armed Forces. They speak about the role of legal adviser

Mr Tobias Vestner: Major General, thank you very much for being here. He has tremendous experience in operational law, military law, Peace Operations, etc. So if I may ask, Major General what is the role of the Legal Adviser?

Maj Gen (Retd) Blaise Cathcart: Yes, well, first, thank you very much, Tobias, for the kind invitation to to engage in this con, very important conversation, great to be here in Switzerland and at the GCSP. It's a very fundamental important issue to have people understand what is the role of a legal adviser, a lot of folks certainly in Canada, and I think it's repeated around the world in my experience, often are a little bit confused to say, well, why would a military or government for military matters? Why would they need a legal advisor if you just do your business? Well, it's completely the opposite. If you don't have a legal adviser, decision makers have put themselves in high risk of creating very bad situations. And in any event, whether it's a peacekeeping operation, an actual armed conflict, or just domestic issues as well. In Canada, there are different models, obviously, just like everything else around the world, and different countries have different models. In Canada as a Judge Advocate General had two major roles that were assigned to me by Parliament. One is to provide military law advice to the government to the Prime Minister, the Minister of National Defense, and the Chief of Defence Staff in particular, I also was the superintendent of the administration of our military justice system, which was Canada's other justice system besides our civilian criminal law system. So those are two very heavy key roles. But more importantly, it's just the reality of today's complex environments that governments have to work in and make very tough decisions, particularly as we'll probably focus on, you know, operational type issues, very complex the interaction of international law, your own domestic law. If you don't have a legal adviser there to help you along the way, you put again, you put yourself in a very significant high risk of making a series of mistakes that ultimately could lead to loss of lives, not only your own people, men and women, Canadian men and women uniform, but those around the world that you might send Canadian Armed Forces to use deadly force against.

Mr Tobias Vestner: Interesting but does that mean that basically, you're just a legal lexicon like an encyclopedia and you have some legal answers and legal options or is there something else to it, like you have some elements you also have to push for or should push for, like the respective rule of law, respect of international law, or any other foreign policy or domestic politics, policy issues? How's that?

Maj Gen (Retd) Blaise Cathcart: Yeah, well, it has to be you, you can't simply be what I would say you know, an automaton or a robot. They could easily replace you with simply say, here's my legal question. Here's the legal answer spit out. That is not what decision makers really want in the modern world anyway, they need legal advisors. And in the case of Canada as an example, I was a member and actual member of the military as well, I held the rank, as you said, when I retired Major General. So in Canada, we had, you know, the unique position within the military of having two professions, one as a member of the military or a member of the profession of arms, and all that entails to understand what is, you know, the application of force and what's the history of using that within Canada and around the world. But also I was a member of the legal profession. What does that mean? It means I had professional responsibility. I always remember I was a member of a professional society that would hold me accountable for my legal advice in addition to the government itself. So that creates this sense of seriousness and gravity. And when you combine that with the realities, like you said earlier of the very complex environment we operate in, you must have a legal adviser who is fully conversant with the business of, I'll use the term client. In this case, it's the military command. What is it they do? That's why we are in uniform, we become, go through basic training, we understand the military jargon, we understand military operations, that is critical to understanding what type of legal advice to advise in the context. Also, in the real world, it's critical to develop trust and relationships. It gives credibility to a legal adviser when they've sort of done the exact same things in terms of understanding the operations or participating in operation as the military operators do. So you absolutely cannot be simply someone that you sit behind your desk, and they provide you with a written question and you give a written answer that can happen sometimes that's the way people want to run their system. But I think again, it goes back to my comment that you're putting your serious decisions at significant risk of not understanding so we went to great pains. Canada to make sure all of our, starting with me when I joined the military in 1990 as a young legal officer, training them not only in the law in their competencies, but understanding the complexities of the military and the wider political and diplomatic goals of government.

Mr Tobias Vestner: Interesting but so you're talking of confidence of trust, you're also talking about your legal advice within the organization. But in the end it is still when push comes to shove. It's about speaking law to power. Right? And I guess that is not always obvious, because the interest may not be per se what the law says or what is what the law provides. So how do you see that speaking to power, what are the inherent challenges? What were the challenges you had? So much experience from at every Echelon, tactical, operational, strategic political level? What challenges do you have?

Maj Gen (Retd) Blaise Cathcart: Well, you can imagine there's many challenges in militaries, professional militaries, you know, they spend a great amount of time and resources to develop strong leaders. Whether there be Army, Air Force, naval service or special forces, there's a reason for that they need professionals Because ultimately, you're putting the nation's you know, treasured blood the young men and women of your nation in their hands to decide in the in the worst case scenario is life and death decisions. So they need to be strong willed people obviously don't always have a lot of time either to debate issues, as you might do in an academic environment. So they need advisors, not only legal advisors, other political advisors who also have that same mentality that they will be willing and able to enter the discussions, understand the discussions, as I said, If you don't understand the operational planning process or the or the acronyms, even those things, you'll be basically isolated and not very useful to the commander or decision maker. So but once you're inside and you know their business, then you also have to say at times, clearly, well, let's slow this down, we've got to reconsider things, your goal is obviously to help the commander achieve operational success. Everything leads to that. But in that process, the law has to be very prominent, and with the complex societies and the issues that our commanders face and the time pressures and pressures of instantaneous media coverage, it's a challenge. And so to sit and expect a long winded answer from your lawyer is not what they're looking for. They need practical advice, but you have to have obviously the confidence and then courage. And I've been in those scenarios, thankfully, not that many times, because we were always able to work out where you have to say to the commander, sir, you cannot do it that way. The law does not allow you to do it that way. However, here's another legal option for you. And that usually gets you to where you need to go.

Mr Tobias Vestner: Great. Are there any tips and tricks or any lessons learned or recommendations that we could gain from your broad experience from tricky situations also, that could be helpful for young or now practitioners?

Maj Gen (Retd) Blaise Cathcart: Yeah, absolutely. I mean, obviously, when you're younger, you're still learning yourself. So it's a challenge to make sure you've got the competencies, number one, and that's your responsibility, but also the systems, we have to make sure we design good, basic legal training programs for our new lawyers to make sure they have those skill sets. Then we also like the military, because we're part of the military and have to work on leadership skills. And that means getting the courage and confidence to deal with the tough issues under very crisis driven, stressful circumstances. So what I would recommend is obviously, you know, to every Legal Adviser potential Legal Advisers obviously know your technical side, whether it's domestic law, international law, those are a given, but then, work closely with your senior legal advisors, other senior military people that you will interact with. I learned a ton of information about leadership just by deploying, even though I'm not the leader in terms of the infantry battalion or onboard a ship, but I was there every moment when I saw leaders interact. And you learn how they, their mindset and their and their emotional reactions are often predictable in that sense as well. So the key thing is make sure you have your competencies and your confidence in that. And then work within it. As I said, know the business of your client. Make sure that you know it so that you can both assist and obviously where appropriate challenge because the first thing a senior seasoned military operator will do they'll call your bluff. Do you really know my business or not? And when you can show that you actually do you know your business. And that again, that becomes like I said, you're part of the profession of arms. So that means you're not just a technocrat. If I could use that term to provide legal advice, you're a Legal Officer. And so the young people that we try to recruit, we're appealing, obviously to that ability to do those two professions, the law and the arms and also ultimately in a very broader sense, you call upon those people to understand the importance of again, service to your country. Because that makes the difference in many of those moments of stressfulness and crisis driven, when everybody knows everybody's credible and you're on the same team.

Ms Ashley Müller: That's all we have now for today's episode. Thank you to Ambassador Philip Griffiths for joining us along with Mr Tobias Vestner and Maj Gen (Retd) Blaise Cathcart. Listen to us again next week to hear all the latest insights on international peace and security and don’t forget to subscribe to us on Apple iTunes, follow us on Spotify and SoundCloud. Bye for now.

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