TAKING STOCK OF THE ARMS TRADE TREATY

If The Arms Trade Treaty (ATT) Is A Gateway For National Small Arms Control And Civil Disarmament, Maybe The United States Should Not Sign or Ratify the ATT After All?

By Jeff Moran | Geneva

 

(c) Jeff Moran
Image: (c) Jeff Moran

 

On 20 June Ambassador Roberto Moritán (Argentina), the former President of the 2012 UN ATT Conference and Chairman of the pre-negotiations process, spoke as part of a public briefing on the ATT at the United Nations in Geneva titled “The Arms Trade Treaty: Past, Present, Future.”

Amb. Moritán explained the ATT should not be seen as a static treaty, like others within the traditional arms control and disarmament field.  Instead, he explained that the ATT is best understood as an ongoing process and a framework…dynamic and expandable with amendments and additional protocols perhaps.  Additional protocols were understood to mean distinct treaties negotiated in addition to the ATT.  An example of a disarmament treaty with additional protocols of would be the 1980 Convention on Certain Conventional Weapons.

Expanding on this theme, Amb. Moritán stated the current “scope,” “parameters,” and “criteria” within the existing treaty “need additional negotiation.”  In particular, he said the scope of the treaty should be expanded over time in light of technological developments, and cited scientific achievements in robotics as one reason for this.  He concluded by stating “the ATT has to lead to negotiations in conventional weapons.  Negotiations of conventional weapons cannot continue to be a taboo in the United, Nations.”

If the ATT is to become a broader framework for ongoing negotiations on conventional arms control and disarmament, it is only a matter of time before the volume of the UN small arms control discussion turns up.  This was hinted at during the follow-on presentation by Sarah Parker of the Small Arms Survey, the UN’s go-to resource for small arms control research and policy development.

Ms. Parker presented a PowerPoint version of a report she published earlier this month called: “The Arms Trade Treaty: A Step Forward in Small Arms Control?”.  She explained in her report that while “the ATT has contributed several missing pieces to the framework of controls governing the international transfer of small arms,” it nonetheless has “provisions that are, in many cases, weaker than existing commitments on small arms transfers agreed more than a decade ago.”  She confirmed to those present that deliverables from a separate UN project to write and promulgate International Small Arms Control Standards (ISACS) would be “of value” in future discussions to amend the ATT.

Three take-aways from the briefing with respect to small arms: the ATT needs more work with respect to controlling and documenting international small arms transfers at the very least, and the UN ISACS are likely to be valuable tools for transforming the ATT into a more robust binding instrument of small arms control going forward.

But normative developments within the ATT and broader small arms process framework will not likely be limited to controlling and documenting international small arms transfers.  Given the history of the ATT negotiations and the small arms process, restrictions on transfers of small arms to “non-state actors” or “private actors” (diplomatic homonyms that often mean rebel groups, private corporations, or individuals) will probably reappear on the UN agenda through implementation and expansion of the ATT framework.  So might global restrictions in the form of national controls on civilian access or even outright prohibitions on civilian possession of certain types of small arms.

In this direction, a coalition of UN agencies and contracted small arms control advocates have been quietly developing a series International Small Arms Control Standards (ISACS) since 2008.  Some ISACs were released last year, but Patrick McCarthy, the project’s coordinator, reports the remaining ones will be released this year.  Privately, diplomats estimate that many states hope a critical mass of these standards will become the basis for future negotiations to amend the ATT.  It understood that this would be an example of UN inter-agency transnational smalls policy making that could be flowed into the ATT framework six years after the instrument enters into force, and during meetings of States Parties  every third year thereafter.  Decisions on amendments will not be made by consensus, but through a three-fourths majority vote of States Parties in the room.

Two ISACS are thought to be of particular interest to those seeking to amend the ATT.  The first is ISACS number 03.20, “National Controls Over The International Transfer Of Small Arms And Light Weapons.”  Among other things, 03.20 has a provision that prohibits international transfers to private actors without “end-user certification.”  The second is ISACS number 03.30,“National Controls Over the Access of Civilians to Small Arms and Light Weapons.”  Among other things, 03.30 requires national registration of firearms and owners, prohibitions on civilian  possession of certain weapons Americans can already legally and legitimately possess with appropriate federal transfer application, even has language advocating for national home inspections of private gun collections for safety compliance.  This second standard was written by Dr. Ed Laurance, who is a former strategic planner for IANSA.  IANSA stands for the International Action Network on Small Arms, which, according to page three of its foundation document, is committed to “reducing the availability of weapons to civilians in all societies.”  (More information on draft versions of ISACS 03.30 and 03.20 and other ISACS involving national controls can be found here.)

The concern of American non-profit and charitable groups representing industry, collector, sporting, and pro-gun civil rights/human rights groups is the ISACS are a form of transnational gun control policy making that will become persuasive if not controlling in domestic judicial and regulatory contexts even if the ISACS are rejected formally as ATT amendments by the United States.  This concern is motivated by the way the ISACS project has been executed.  For example, the  Small Arms and Ammunition Manufacturing Institute (SAAMI), a long-time bona fide international standards setting body itself, publicly condemned the ISACS project and withdrew from it after publishing their report detailing  “significant breaches in standard-setting protocols.”

This being said, if the ATT negotiations to date and the 112 signatories to the 2006 Geneva Declaration are any indicator, most if not a three-quarters majority of UN member states would endorse “private actors,” “end-user certification,” and “civilian access” appearing on the UN’s small arms control and disarmament agenda with the ATT.  This specifically would include the “two pillars” of gun control sought by activists around the world:  1) national registration of all firearms, and 2) national licensing of all owners.  In fact, Ms. Parker, along with her colleague Markus Wilson, even suggest in their small arms process guide for diplomats that a prohibition on transfers to private or non-state actors and prohibitions on civilian possession would have already become established if not binding international norms by now were it not for the singular opposition of the United States during the 2001 UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, which resulted in the politically binding Program of Action (PoA).

Of course, the elements of the ATT can and should do much good to help establish badly needed  import/export controls with respect to conventional weapons in States currently lacking them.  Elements of the ATT should also compel appropriate humanitarian criteria into exporting State decision making where such criteria are missing or weak.  But the ATT as approved by the UN General Assembly on 3 April this year seems off target with it focus on global governance when the actual problems associated with small arms in civil society have been isolated to a relatively small number of adversely affected states.  Even Sarah Parker has finally admitted in the conclusion of her aforementioned report:

“Small arms related problems have less to do with inadequate international transfer controls and more to do with controlling small arms already within their territories.” 

Ms. Parker’s remark is supported by prior research making the stronger point that, in fact, for most countries around the globe, particularly for most developing or fragile states, a combination of deficient domestic regulation of legal firearms possession with theft, and loss or corrupt sale from official inventories is a more serious problem than illicit trafficking across borders.[*]  Though the timing of Ms. Parker’s apparent admission (after the conclusion of the ATT negotiations) may raise intellectual ethical questions to some, her acknowledgement is nonetheless welcomed by this author in the spirit of it being better late than never.

This said, can anybody deny at this point that the ATT as approved is also a giant milestone towards global small arms control and disarmament, toward “reducing the availability of weapons to civilians in all societies?”  The truth is that a legally binding ATT, among other things, can and most likely will be revised and expanded to substantially achieve all that the politically-binding PoA was hoped to achieve but hasn’t, and then some.

At bottom, if the US is already the “gold standard” in terms of export controls and already applies humanitarian criteria in international weapons transfers when the majority of states do not, why again is it so imperative the US sign the ATT?   Some key diplomats suggest the US signature is necessary to create a symbolic demonstration of communitarian international engagement, and that this would help encourage other key abstaining states to do the same.  But if the terms for signing and ratifying the ATT include an balloon payment 6 years after entry into force requiring roll-back of American industry, collector, sporting, hunting, and civil arms rights and privileges, perhaps the US ought not sign the treaty after all.  Sarah Parker herself clearly suggest that if we are truly concerned about the adverse  impact of small arms in states most afflicted by such arms, it makes much more sense to focus building local governance than global governance through treaties and transnational ISACS.  It would seem that the true humanitarian priorities should be on the root causes of armed violence in specially afflicted developing or fragile states, namely the lack of rule of law, weak if not incompetent local governance, corruption, and deficient controls over government stocks of small arms and light weapons.

 

Note

[*] This author first called attention to the apparent overselling of the ATT’s benefits in this regard in 2012. See http://tsmworldwide.com/dishonest-humanitarianism/ at notes 17, 18, and 19, which address research invalidating the overhyped claim by many ATT proponents, including the UN Office of Disarmament Affairs, that there was ever and still is a global scourge of international trafficking of small arms.  Scholarship has show for years, contrary to ATT advocacy campaigning messaging, that the problem of international trafficking of small arms is actually quite small, and isolated to specific troubled states or sub-regions.  For more on this see Owen Greene and Nicholas Marsh, eds. Small Arms, Crime and Conflict: Global Governance and the Threat of Armed Violence. Routledge: 2011 and 2012. P. 90-91.

 

 

About The Author

Jeff Moran lives in Geneva, Switzerland and is a consultant specializing in the ethical and responsible development  of the international defense, security, and shooting sports industries at TSM Worldwide LLC.  Previously Mr. Moran was a strategic marketing leader for a multi-billion dollar business unit of a public defense & aerospace company and an American military diplomat.  He is currently studying weapons law within the Executive LL.M. Program of the Geneva Academy of International Humanitarian Law and Human Rights.  Mr. Moran has an Executive Master in International Negotiations and Policymaking from the Graduate Institute of Geneva, an MBA from Emory University’s Goizueta Business School, and a BSFS from Georgetown University’s Walsh School of Foreign Service.

 

First Published: 29 June 2013
Updated and Republished: 24 July 2013

 

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