According to the 2013 United Nations (UN) ArmsTrade Treaty (ATT), a proposed export that is likelyto result in a serious violation of human rightsshould not be allowed to proceed. Accordingly,Article 7(1) of the treaty requires each state party,before it decides whether to authorize an exportof conventional arms, ammunition/munitions, orparts or components that fall within the scope ofthe treaty, to assess the level of risk of the itemsin question being used to commit or facilitate a‘serious violation of international human rights law’.The desire to promote respect for human rights lawis also a principle that guides the actions of statesparties.1The text of the treaty does not define the notionof a ‘serious violation’, though it distinguishesbetween different violations of human rights interms of their gravity. This raises a definitionalquestion: what would constitute a serious violationof human rights law? Is a ‘serious violation ofhuman rights’ comparable to a ‘grave’, ‘gross’,or ‘flagrant’ violation? Do these notions name thesame concept or threshold?Related to this is a more practical challenge. Howcan the term be operationalized in the contextof the ATT? What factors should be consideredrelevant for the purpose of assessing whether aserious violation might be committed or facilitated?A clear understanding of the term is evidentlyneeded, not least because Article 7 covers abroader range of crimes than Article 6(3) (whichproscribes transfer of arms where they would beused to commit the gravest international crimes,including genocide, crimes against humanity, andcertain war crimes). Since the treaty establishes theconcept of ‘serious violation’ but does not defineits content, its meaning may come to be defined bythe practice of states parties.
Case Concerning Armed Activities on the Territory of the Congo