Yesterday, during his visit to Mexico, senior administration officials confirmed that President Obama will push the U.S. Senate to ratify the “Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials.” The Clinton administration signed the treaty, better known by its Spanish acronym CIFTA, after the Organization of American States adopted it in 1997. The Senate has not ratified it, but as the administration acknowledges, the U.S. has abided by the spirit of the treaty. The treaty, while not as fundamentally flawed as the global arms trade treaty supported by the U.N., contains a number of objectionable provisions.
Part of the background to the administration’s move is the widespread violence in Mexico, fuelled by the drug trade. It has been widely reported that 90 percent of guns seized in Mexico come from the United States. If true, this would be a serious. But it is not true. According to the Bureau of Alcohol, Tobacco, Firearms and Explosives, the figure of 90 percent relates not to all guns seized in Mexico. Rather, it is about the percentage of seized guns that Mexico sends to the U.S. for tracing that turn out actually to be from the U.S. Guns that originate in the U.S. are in reality a small percentage of the total seized. Given that more than 150,000 Mexican soldiers have deserted in the past six years, taking their M-16s with them, Mexican criminals do not need U.S. sources to supply them with assault rifles.
The second part of the background is the left’s campaign for global gun control, of which Yale Law School Dean Harold Koh, nominated to be the State Department’s Legal Adviser, has been one of the leading voices. This campaign is embodied in the U.N.’s proposed treaty, which is a perverse and bad idea that would threaten the rights of Americans under the Second Amendment, make it easier for foreign dictators to buy arms, endanger U.S. arms embargos, and make it harder for foreign freedom fighters to resist tyrannies. And, of course, it is also embodied in the left’s domestic gun control campaign and its dislike of the military and other legitimate users of guns, embodied by the bogus 90% statistic and Homeland Security Secretary Janet Napolitano’s recent report which claims that returning U.S. veterans pose a terrorist threat to the United States.
This background matters, because it informs how the treaty will be interpreted and applied if ratified by the Senate. The treaty has three provisions that are either objectionable, or open to misuse. First, while the Treaty rightly states that it does not apply to “firearms ownership . . . of a wholly domestic character,” this provision is obviously subject to interpretations of what is “wholly domestic.” As the history of the ever-expanding interstate commerce clause of the U.S. Constitution, for instance, implies, few things end up being regarded as “wholly domestic”: after all, in theory, any gun anywhere in the U.S. could find its way to Mexico. Therefore, this provision, while correct in itself, is too vague, and open to many expansive interpretations that would transgress the Second Amendment.
Second, the Treaty requires signatories to “afford one another the widest measure of mutual legal assistance,” and creates a series of indictable offenses, and the legal basis for extradition, between signatories. In many cases, this poses no problems: the U.S. and Canada, for instance, as friendly and democratic states, should always wish – subject to domestic legislation – to afford each other such assistance. But not all the states in the Western Hemisphere, sadly, are democracies. Cuba’s precise legal position in the OAS is difficult to define, and it is not a signatory, but Venezuela is a full member, and a signatory of the treaty.
This means that, should the U.S. ratify, it will be compelled to afford legal assistance to the regime of Hugo Chavez, and to consider his extradition requests. And since the offenses created by the Treaty include the “counseling” of arms trafficking, this means that Chavez could request U.S. legal assistance against, and the extradition of, any exiled opponent who exercised his freedom of speech by calling on the Venezuelan people to resist his dictatorship. The U.S. should never put itself in the position of being the bloodhound of foreign tyrants.
Third, the Treaty creates a Consultative Committee of member states. Most of the purposes of this Committee, the decisions of which are recommendations, not requirements, are sensible. But the Treaty calls for the Committee to “prom[ote] . . . exchange of knowledge and experience . . . and technical assistance between . . . relevant international organizations, as well as academic studies.” The call for technical assistance to relevant international authorities, though it has legitimate uses, is also a back door through which the U.S. could be maneuvered into practical – if not legal – participation in the U.N’s. global gun control regime without the advice and consent of the Senate. As for the academic studies, there is no shortage of academics writing such studies already, and no study funded by the Consultative Committee is likely to question its basic existence. These studies, therefore, will amount to subsidized propaganda.
A final point, not inherent in the Treaty itself, also deserves mention. As the Washington Post put it:
Advocates for the treaty have argued that the United States, even if it is trying to follow many of the convention’s requirements, is undermining its credibility by failing to ratify it. [5]
This is a fallacious vision of international law and politics, because it implies that other states are failing to live up to the responsibilities that they have freely accepted by signing the treaty simply because the U.S. has exercised a similar freedom by not ratifying. The implication of this vision is that their problems are our fault, and that, if we simply amend our ways, their problems will disappear. But this is not true. Mexico’s problems are serious, they do affect the U.S., and we should – as we do – seek to cooperate with them for our mutual benefit. But Mexico’s problems originate in Mexico. If the Treaty lacks credibility, that, similarly, is a problem with the Treaty itself, and with the states that have signed it. This vision ultimately implies that what others do is only a reflection of our own flaws. That is also untrue: others have flaws of their own.
The same is true of this Treaty. Much of it is uncontroversial, sensible, and fully in accord with U.S. practice. But it creates obligations that are dangerous to free speech, offer opportunities for evading the Constitutional requirement for the advice and consent of the Senate, and could readily be expanded in ways that would conflict with the Second Amendment. The justifications offered for ratification are untrue statistically, and unwise in their approach to international politics. The U.S. Senate should consider these points with care when it votes on the Treaty.