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The American Position: UN International Small Arms Controls Standards

Jeff Moran | Geneva

UPDATE as of 12 February 2015.

The US Government (USG) takes a mixed view on the eleven UN International Small Arms Control Standards (ISACS) published to date by the UN CASA organization.  As one USG official closely following the development of ISACS explained it in an email last week, the USG decided to:

“not participate or get involved [officially, in the ISACS development process] as there was much to be lost and little gained by weighing in on each module or even lend [sic] USG credibility to the flawed process. We have successfully excised ISACS references at some cost from all kinds of official papers issued by the UN and others and continue to express publicly that we do not believe the process is one competent to create or establish real standards.  [The US Department of] State continues to repeat [the] position in multilateral venues that we don’t believe the ISACS is a legitimate standard and we do not use them or endorse them.”

This official’s private view aside, views do differ inside the USG.  This is evidenced by the fact that other  US Department of State policymakers in Washington and their diplomatic representatives in Geneva  engaged in  “conventional arms threat reduction” have declined requests by multiple interested parties to speak on the record or point to policy statement documents to back up the US position suggested by the qoute above.

This has led some industry and stake-holding civil society groups mindful President Obama’s Now Is The Time, Fast & Furious, and Choke Point undertakings to raise questions about the USG’s actual position.  This is especially so given that at least one senior international legal specialist has been on the official ISACS email distribution list for over 5 years and has yet to provide any feedback to the process like other interested policy-making officials from around the world have done (e.g. in support of tighter controls).

These skeptics might have a point.  It is customary in international standard-setting / norm-diffusing fora,  especially those led by the United Nations,  to equate silence by process parties,  whether they are publicly disclosed or not, as implicit consent.  It is well understood in the international policy-making and standard-setting world that if a state does not want to eventually end up bound by standards/norms later crystallized as customary international law, it must declare it’s objections and sustain those objections.

This said, industry and stake-holding civil society groups involved in the ISACS process confirm three (27%) ISACS are acceptable.  The three accepted as more less valid and legitimate international standards are:

The findings above are among many resulting from an 20-month TSM independent inquiry into the international legal aspects of the ISACS development process.*

What are ISACS all about?

The ISACS project is actually a UN sponsored international standard-setting multi-stakeholder initiative (MSI) conceived in 2007.   MSI’s are a form of international normative cooperation (or informational international lawmaking) designed to resolve what are known as sustainability problems.

Sustainability problems addressed by MSI’s can include a range of issues affecting individuals, communities, and organizations.  The ISACS MSI was conceived to address, among other things, the problem of uncontrolled proliferation of small arms and light weapons and their misuse…to reduce human rights violations and promote human security.

The original ISACS MSI approach to this problem was to develop agreed-upon international standards that were consistent with the methods and procedures of the International Organization of Standardization (IS0).

What explains the high process defect rate so far?

There are are many reasons for the high (73%) defect rate.  And this is a subject of intense sensitivity for many parties.  Very generally speaking, the defect rate can be attributed to the ISACS MSI Sponsors reneging on their stated commitments and not fulfilling other implied obligations.  In other words, the ISACS MSI, under the leadership of Dr. Patrick Mc Carthy of the UNDP, essentially compromised on three sets of principles in the pursuit of their goals:

  1. ISO principles of international standards development.  One of these principles is that international standards development is a multi-stakeholder process.
  2. UN principles of effective MSI governance.
  3. UN principles of professional and ethical conduct.

The third set of principles comes into the picture on account of published reports and statements variously made in the UN by ISACS participants aligned to the interests, goals, and concerns of industry.

The industry, broadly understood, includes not just manufacturers of small arms and ammunition, but other interested parties such as other companies within their supply and distribution chains, retailers, consultancies, competitive shooting groups, hunting and conservation groups, collector groups, adult and youth training organizations, hobby clubs and associations, civil arms rights advocacy groups, and the 62% of Americans (about 198 million people) who believe having a gun at home makes them safer.

According to persons directly involved with ISACS, Dr. Mc Carthy, in addition to those above him, lost the trust and confidence of these industry and other stake-holding civil society participants some years ago.  This precipitated the small arms and ammunition industry’s ISO-accredited standard setting body to condemn the ISACS process in 2012 due to significant and abusive breeches in standard setting protocol.  Given UN employment rules, this implies a significant  degree professional misconduct took place, and likely continues to take place.  So far, no UN investigation into implied misconduct by Dr. Mc Carthy or the ISACS project board has been undertaken.

Four sources of principles, standards, or rules pertaining to professional and ethical conduct for UN employees are:

  1. UN Charter (Articles 100).
  2. UN Oath of Office.
  3. Standards of Conduct for the International Civil Service.
  4. UN Staff Rules and Regulations.

If the ISACS development process remains so “flawed,” why does industry and its stakeholders view the three ISACS as acceptable?

The three ISACS listed above are seen as acceptable because all MSI stakeholders were still able to arrive at a general agreement without any sustained opposition.  What enabled agreement to happen given the very general situation described above was the fact that the three standards were actually not controversial to begin with and mainly technical in nature.

The other eight ISACS, on on the other hand,  were a lot more controversial.  But instead of doing the hard work that goes along with multi-stakeholder standards development (i.e.  trust-, confidence-, and bridge-building, and interest-balancing, to ultimately reach general agreement in the absence of sustained opposition),   Dr. Mc Carthy and his board backers apparently went with the majority opinion in spite of sustained opposition by the minority group of industry stakeholders.  In so doing, they implicitly nullified their UN mandate and their prior commitments to these stakeholders …and apparently violated UN rules of ethical conduct.  In theory, UN staff and officials who directly engage in or are complicit in ethics violations and/or prohibited conduct are subject to disciplinary action, including termination.

If ISACS don’t qualify as international standards, what are they?

The other eight ISACS published by CASA are seen as non-binding potentially useful guidelines if not just aspirational recommendations.  This view is held not only by some USG representatives  speaking privately but is in fact widely held by alienated industry, sporting groups, and civil arms rights groups actually represented in the ISACS MSI

Note
* The TSM ISACS inquiry included document discovery and analysis, international consultation and coordination not just with representatives of the US Departments of State and Justice, but also with prominent Geneva-based international legal experts and foreign diplomats.  This inquiry also involved several interviews and exchanges of views with Dr. Mc Carthy, the ISACS Coordinator, selected ISACS authors and consultants (including the ISACS international weapons law consultant).  Finally,  this inquiry included consultation with representatives of the international small arms industry, sporting, and civil arms rights groups who have been officially engaged in the ISACS MSI as part the Expert Resource Group or ERG.  The ERG is the UN CASA-determined stakeholder body approved to give feedback on proposed standards.  TSM estimates this stakeholder body is composed two coalitions: a 90+%  majority of UN agency officials, small arms control activists/researchers, and humanitarian and anti-industry activist versus  a 10-%  pro-industry minority.  Official UN ISACS MSI documentation (and obtained personal statements by Dr. Mc Carthy) appears to confirm the go/no-go criteria for standards development will designed to be biased in favor what the majority wants, and that the ISACS MSI was designed to operate at variance with numerous normative principles and official UN professional ethics and conduct standards.  These findings, among others, has led TSM to launch the ISACS Accountability Project.

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