In a “no news is news” story, The Washington Post reports that, in spite of nominal support from President Obama in April 2009, neither Senate Democrats nor the White House is enthusiastic about seeking ratification of the CIFTA treaty. That is good news.
CIFTA is the Spanish acronym for the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. Negotiated under the auspices of the Organization of American States, it was signed by President Clinton in 1997, but it has not yet received the advice and consent of the Senate. And it appears that that is not going to change soon.
The Post story, written by Mary Beth Sheridan, is heavily slanted in favor of the treaty, leaving the reader with the impression that CIFTA is a sensible treaty that has unfortunately been stalled for reasons of domestic politics—specifically, the Senate race in Nevada. Undeniably, domestic politics have shaped the ratification process: that is how things work in a democracy. But most of the Post’s claims, and those of the treaty’s supporters, are seriously flawed.
According to the Post, “the U.S. government already complies with the treaty’s provisions. No U.S. laws would have to change, officials say.” It’s amazing how these claims escalate. Back in August, Ann K. Ganzer, Acting Deputy Assistant Secretary for Threat Reduction, Export Controls, and Negotiations, claimed that the U.S. was already “in compliance with the Convention implementing many of its commitments.” Now, the Post tells us that the treaty is merely “symbolically important,” and that it would change nothing in the U.S.
The Post reports that “thousands of U.S. weapons have been sent illegally south of the border in recent years—although gun-rights groups say that there’s no evidence they make up the bulk of [drug] cartels’ arsenals.” The way the Post puts it implies that the “gun-rights groups” are just making things up. Actually, it’s the treaty’s supporters who are fabulating. The statistical support for CIFTA comes from an oft-misquoted GAO report, which found that, of the guns seized in Mexico and given to the ATF for tracing from 2004 through 2008, approximately 87 percent originated in the U.S.
But this number says nothing about the percentage of guns seized in Mexico that originated in the U.S., because the U.S. does not trace the majority of guns seized in Mexico. As Jess T. Ford, Director of International Affairs and Trade at the GAO, testified before the House Subcommittee on the Western Hemisphere on June 19, 2009, it “is impossible to know how many firearms are illegally trafficked into Mexico in a given year.” It is therefore impossible to know what share of those firearms is of U.S. origin.
The Post quotes Jonathan Winer, the chief U.S. negotiator of CIFTA, who states that, under CIFTA, “you can’t sell a weapon to a country where it’s not legal. How controversial is that?” That is not controversial, but it is also not accurate. To quote the treaty, one of its purposes is to “prevent, combat, and eradicate the illicit manufacturing of and trafficking in firearms, ammunition, explosives, and other related materials.” In other words, one of the (purported) purposes of the treaty is to stop a cross-border activity that is already illegal: arms trafficking. It has nothing to do with ending cross-border sales that would be legal were it not for the laws of the recipient country.
Then, inevitably, comes the claim that the treaty would not have any effect inside the U.S.: the Post quotes Harold Koh, the State Department’s Legal Adviser, as saying “If . . . actions are lawful under U.S. domestic law, CIFTA doesn’t make them unlawful.” But the treaty prohibits the “unlicensed manufacture or assembly or firearms, ammunition, explosives, and other related materials,” and it defines “related materials” as “any component, part, or replacement part of a firearm, or an accessory which can be attached to a firearm.” In short, the treaty defines manufacturing and assembly very broadly, and requires the creation of a domestic licensing system to cover these activities. That would definitely change existing U.S. law.
What Koh may mean is that, in order for it to have domestic effect, the ratified CIFTA treaty would have to be accompanied by implementing legislation: it would be that legislation, not CIFTA itself, that would make currently lawful actions unlawful. But for Koh to imply that U.S. domestic law would trump the clear meaning of the treaty is hilarious, as Koh is perhaps the U.S.’s most distinguished critic of national sovereignty and exponent of transnational progressivism as a legal philosophy. Indeed, in 2002, he explicitly praised CIFTA in a law review article as “the best model” on the grounds that it requires states “to standardize national laws,” that “the only meaningful mechanism to regulate illicit transfers is stronger domestic regulation,” and that “supply-side control measures within the United States” were essential. Koh’s own argument from 2002 contradicts his latest statement.
Finally, there is another standard claim: that the U.S. needs to ratify the treaty in order to demonstrate its good faith. As one treaty supporter puts it, “It’s pretty hard for us to ask countries to cooperate with us on an issue [arms trafficking] in which we haven’t ratified a key inter-American convention.” That will come as a surprise to the State Department, which already operates a wide range of bilateral programs in the Western Hemisphere that confront the problems that the convention supposedly seeks to address, ranging from assistance with stockpile destruction to advice on the creation of effective export controls to training of foreign law enforcement officers.
CIFTA is not a serious treaty, and it has many disabling flaws. It exists not to achieve its purported aims, but as a signaling device to Mexico: when U.S. politicians want to show they are concerned—as they should be—about Mexico, they talk up the treaty. That is why Clinton signed it in 1997, and why Obama mentioned it in 2009. It is also, of course, a convenient stalking horse for individuals, like Harold Koh, who want “stronger domestic regulation” and think the best way to get it is through the treaty process.
As the Post acknowledges, as a treaty, CIFTA is a symbol. But, in the realm of serious people, treaties are instruments of diplomacy that, once ratified, reflect on the honor and commitment of the United States. If other countries want to sign on to CIFTA, that is their business. If they are unhappy with the treaty’s effectiveness, that is also their business. There are no worse grounds for urging the U.S. to ratify a treaty than to claim that the U.S. needs to put polish on a symbol, or to help other countries fulfill commitments they entered into freely. The reasons why CIFTA has not received the advice and consent of the Senate are for Senators to know. But nothing in the Post’s take on it gives them any reason to change their minds.
