The overwhelming majority of commentary in the United States on the U.N. Arms Trade Treaty (ATT) has focused on the possible risks it poses to rights protected under the Second Amendment. There is nothing wrong with being watchful on this front, but the ATT raises broader concerns for U.S. foreign policy.
Indeed, the ATT is inherently flawed simply because of the beliefs on which it is based and the process by which it is being drafted. Here are five reasons why.
1. Equal Rights to Democracies and Dictatorships
Any conceivable ATT, simply because it is being negotiated through the U.N., will be based on recognizing that all members of the U.N. are equal and sovereign states and thus have equal rights. The inevitable result of this, in the context of the ATT, will be a treaty stating that Iran and Venezuela have the same rights to buy, sell, and transfer weapons as do the U.S. and Japan. The U.N. already contains far too many dictatorships; negotiating a treaty that enshrines their equality of status in the realm of arms transfers is inherently a bad and dangerous idea.
2. Nations Do Not Want Higher Standards
Any nation is free to set its own standards for the import, export, and transfer of arms. If the nations of the world genuinely want higher standards, they can have them right now. The fact that they do not means that many of them are not negotiating the ATT in good faith. And that, in turn, means that the treaty will not constrain them after they sign it. The idea that there is a vast illicit arms trade in the world is a myth: Most arms trafficking is done with the knowledge and the connivance of governments, which describe it as illicit to conceal their culpability (or, on occasion, their administrative incapacity). The U.S. should never negotiate, support, sign, or ratify treaties that are based fundamentally on a lie.
3. Quest for Universal Transfer Criteria Inherently Flawed
Any conceivable ATT is going to be based on a set of criteria that treaty signatories are supposed to use to assess the legitimacy of arms transfers. But there are no criteria that work in all cases: Arms transfers, like international relations as a whole, are inherently about judgment. If, on the other hand, the treaty allows the U.S. to retain its current system, which balances and weighs the factors involved in any transfer, it will be abused by nations like Russia and Iran to justify their transfers to places like Syria. A meaningful treaty cannot have both universal criteria and allow flexibility in applying them. The U.S. should not participate in treaties that cannot work. Diplomacy is too serious for that.
4. Constraining Only the Law-Abiding
The ATT is a classic aspirational treaty: It will require many nations to do things that they do not currently do and have no intention of doing. Treaties like this are inherently a bad deal for the U.S., because we have a well-developed administrative system and are basically law-abiding. Unlike a lot of other nations, we have the ability and the intention of living up to our word. Given the fact that the treaty criteria will be vague, open-ended, and ill-defined, that is extremely dangerous, because it will subject the U.S., U.S. allies, and U.S. companies to the perpetual risk of lawfare—the use of law as a continuation of war by other means—based on legal criteria that we are not responsible for defining. A treaty based on such criteria will end up constraining the U.S. in ways that we cannot now foresee but cannot be in our national interest.
5. The Problem of the “Non-State Actor”
The fundamental idea behind the ATT is that governments have an inherent right to arm themselves; individuals, it is presumed, have no such inherent right. There is no doubt that most nations, and the U.N. itself, dislike the U.S. belief that individuals (who are “non-state actors”) have an inherent right of personal self-defense. On the other hand, many nations want to retain the freedom to transfer arms to terrorists, which are also “non-state actors.” The treaty thus has the impossible job of preventing arms transfers to “bad” non-state actors, even though there is no agreement whatsoever on who is bad and who is good. This is partly a Second Amendment problem, but it is far more than that.
We at The Heritage Foundation do not oppose treaties as such. We judge them individually by asking if they are in the American interest and compatible with American sovereignty. As the Founding Fathers did, we value diplomacy as one of the institutions of civilization. A fundamental problem with the ATT is that, because of its many flaws, it will contribute to further discrediting diplomacy in the eyes of the American people.
If you want the U.S. to lead internationally, you cannot back every flawed, aspirational treaty that comes along, because, frankly, the American people will not stand for diplomacy that does that. And the American people are right not to stand for it.