In early July, I spent two weeks at the U.N. conference on the Arms Trade Treaty (ATT). The conference ends on July 27, and I’m back for this final week. The president of the U.N. conference on the Arms Trade Treaty (ATT) has just released a draft treaty text. Here is a quick reaction to it.
Majority rule. The first and overriding problem is that Article 20, paragraph 3, states that “amendments to this Treaty shall be adopted by consensus, or if consensus is not achieved, by two-thirds of the States Parties present” at a conference of signatories. This would make the U.S., if it were to sign, subject to a two-thirds majority rule on matters of fundamental national security and constitutional liberties. It is completely unacceptable.
Possible inclusion of domestic “transfers.” While in Article 2, Section B, paragraph 1, the ATT nominally applies only to international transfers, it does not actually define transfer or what constitutes an “international transfer.” Since the draft includes small arms and light weapons, covers “illicit trafficking,” and requires signatories to respect international agreements to which it is party (presumably including the U.N. Firearms Protocol, where applicable), it could still be held to apply to domestic transfers.
Implication of end-user requirements. Articles 6, 7, 8, and 11 relate to end-user verification, “unauthorized end-users,” and reporting requirements, If the item being exported is a main battle tank, it makes sense to require end-user verification, because battle tanks are not normally sold to individuals. But if the item is a hunting rifle, a demand for end-user verification becomes a demand for the identity of the individual buyer. The fact that the draft (Article 6, paragraph 5) requires states to cooperate to “prevent diversions to…unauthorized end-users” makes this problem even worse. In short, the draft continues to imply that signatories should create a national firearms registry and report that information to the ATT’s support unit.
Vague on its coverage of ammunition. The draft’s treatment of ammunition appears to be deliberately confusing. It is not formally in the treaty’s scope, but it is included as part of mandatory national control systems and then excluded as part of the treaty’s covered activities and reporting requirements. The point of this appears to be to allow advocates of ammunition inclusion to say that it is included and opponents of it to say that it is out.
International legal issues. The treaty criteria still contain, as appears to be unavoidable, mentions of international human rights and international humanitarian law that pose serious risks to the U.S. transfer system and U.S. firms via the application of internationally, or transnationally, defined standards that the U.S. has not accepted. This problem is more serious because Article 4, paragraph 5, of the draft states that the exporting state “shall not authorize” transfers that violate these standards. The fact that this assessment is nationally based does not limit this risk.
Will not constrain bad actors. If you think the ATT will do anything to control actual abuses of human rights—the treaty is hilariously weak. You could drive a tank through its holes. It requires (as one of its principles) that the treaty be implemented in a “universal, objective and non-discriminatory” manner. That is code language for not discriminating against Iran or any other abuser. It says arms exports should “contribute to peace and security,” meaning that Russia can say that providing arms to Syria will contribute to peace and security by helping the Assad regime to win. The problem with this is the same one that inherently dogs any treaty on the arms trade: It will do nothing to stop the bad guys while constraining the good ones.
Can be brought into force by nations with little stake in it. While the draft requires 65 ratifications to enter into force—which is a surprisingly high number—it does not require that any of these ratifications be by major arms exporters or importers. Thus, the treaty could come into existence and be asserted to be binding international law on the basis of the signatures of states that collectively comprise a tiny share of the world’s population and military power.
Does not recognize right of individual self-defense. Though the draft’s preamble contains a recognition of lawful private activities, it is only preambular language and says little more than that lawful activities are those permitted by law. It does not recognize national constitutional protections of firearms ownership; it does not exclude legally owned firearms from the treaty’s scope; and it does not recognize the individual right of self-defense.
This is not a comprehensive assessment of the draft’s problems. And it is fair to note that the U.S. delegation has been working very hard. The draft, for example, cleverly states that the ATT cannot be cited as a reason to void contracts under defense cooperation agreements, such as the U.S.–U.K. Defense Trade Cooperation Treaty. And many of the draft’s unclear points are obviously designed to fuzz up problematic areas and allow everyone to claim that they are getting what they want. But that is ultimately no solution, because fuzzy language will, in the U.S. legal context, be clarified by the Administration’s lawyers, by the courts, or both.
The motto of this is that the U.S. badly wants to get a treaty—any treaty. However, if you want a treaty bad enough, that’s exactly what you’ll get: a bad treaty.