The United Nations Arms Trade Treaty, which hit a temporary snag last week, is intended to regulate international trade in seven listed categories of conventional weapons, which include small arms and light weapons – for example, handguns and rifles. The international trade in these arms, which would be subject to global regulation under the treaty, includes all manner of “transfers,” which are defined loosely as comprising “export, import, transit, trans-shipment and brokering.” The objective is to prevent arms transfers that would enable the commission of genocide, crimes against humanity, serious breaches of the Geneva Conventions, “attacks directed against civilian objects or civilians,” and other war crimes, as well as the export of arms where there is an “overriding risk” that they could be used to commit or facilitate serious violations of “international humanitarian law” or “international human rights law.”
The treaty has a specific article dealing with the regulation of “exports” of ammunition/munitions. Non-governmental gun control advocacy organizations and some member states were not satisfied with the separate more limited regulation of ammunition, but the inclusion of ammunition in the treaty at all provides a foot in the door for more expansive regulation to come.
Under the rules of the specially assembled Final Conference on the Arms Trade Treaty, which ended on March 28th, approval by consensus was required. This means that if any member state – even one – raised a formal objection, the treaty was deemed blocked. That is what ultimately happened, causing a hiccup on the road to final adoption of the treaty by one means or another.
On March 28th, the President of the United Nations’ Final Conference on the Arms Trade Treaty, Australian Ambassador Peter Woolcott, ruled that there was no consensus of the member states to adopt the final draft text of the treaty because of formal objections raised by Iran, North Korea and Syria. These three countries gave various reasons for their decision to block the treaty from moving forward with consensus approval in the conference, including that it unfairly favored exporting states over importing states and did not allow the Palestinians facing “occupation” by Israel to acquire arms to fight for “self-determination.” No UN conference would be complete without some Israel-bashing, after all.
However, the treaty is not dead. Far from it. The treaty will now go to the UN General Assembly as part of a resolution that can be adopted in that chamber by a super majority vote – mostly likely, a two-thirds affirmative vote. The consensus rules will no longer apply in that forum.
The treaty most likely will be submitted to the General Assembly and voted upon in early April. The Obama administration supports the treaty and is expected to vote for it when it comes up before the General Assembly, joining most other member states. Once so approved by the General Assembly, each member state will be free to sign the treaty and have it ratified if required by that state’s domestic laws. Fifty member states must submit their official instruments manifesting their intent to become a party to the treaty before it can go into effect.
Secretary of State John Kerry himself may well sign the treaty on behalf of the United States after the General Assembly vote, but ratification by the United States Senate is unlikely in the foreseeable future. However, that will not stop President Obama from using his executive powers to implement key parts of the treaty, aggressively asserting that as commander-in-chief he is authorized by the Constitution to act on his own to stem the flow of lethal conventional weapons, including handguns and rifles, to the wrong hands.
If President Obama proceeds to implement the treaty’s provisions through executive orders without Senate consent, his action would raise serious constitutional concerns of executive branch overreach. Moreover, the treaty that he would be implementing – while not as bad as it could have been – remains deeply flawed. It is full of ambiguities and broadly drafted provisions that are subject to manipulation. Here are just a few examples.
In an attempt to answer those critics concerned about the potential overreach of the treaty into matters reserved for the internal decisions of each member state, the treaty preamble reaffirms “the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system” (emphasis added). However, the use of the word “exclusively” implies that the treaty would apply to the global regulation of the covered conventional arms that could possibly end up beyond a member state’s borders at some point in the future. Moreover, the proponents of the treaty have not explained why another clause in the treaty preamble limits the recognition of the individual right of ownership to “legitimate trade and lawful ownership, and use of certain conventional arms for recreational, cultural, historical, and sporting activities,” while excluding any explicit recognition of other traditional individual uses such as self-defense. The only mention in the treaty text of an “inherent right” to self-defense applies to the member states themselves either in their separate state or collective capacities.
As mentioned above, the treaty covers the “transfer” of handguns and rifles, which are part of the category of conventional arms listed as “small arms and light weapons.” Transfers include not only exports and imports, but also “transit,” “trans-shipment” and “brokering” (all undefined terms) within a member party state’s territory. Ammunition is also regulated under the treaty, but to a slightly lesser degree that can be expanded by treaty amendment in the future.
One of the treaty principles following the preamble, and the entire Article 11 of the treaty, are devoted to preventing “diversion” of conventional arms. “Diversion” is undefined but, as an analysis posted by the Heritage Foundation noted, Mexico wanted the diversion language included in the treaty as a means “to require tighter domestic controls on firearms in the U.S. in order to prevent what it argues is their diversion to Mexico.” Fast and Furious comes to mind, but the language can be interpreted as applying the treaty to the transfer of guns from a private seller to a private purchaser within a member party state’s territory that could potentially be diverted to unauthorized end users or illicit markets outside the member party state’s territory. A delegate to the Arms Trade Treaty Conference, who was involved in the drafting of the “diversion” Article, confirmed to me that such a very broad interpretation is quite plausible.
Moreover, the UN’s own Coordinating Action on Small Arms (CASA) program, entitled “The Impact of Poorly Regulated Arms Transfers on the Work of the UN,” issued a paper last year in support of such a broad approach to regulation of arms trade, saying: “United Nations agencies have come across many situations in which various types of conventional weapons have been…misused by lawful owners” and that the “arms trade must therefore be regulated in ways that would…minimize the risk of misuse of legally owned weapons.”
Consider also the treaty’s requirements for state parties to maintain broad scope “national control lists” to be shared with the UN Secretariat, coupled with the treaty’s encouragement of member party states to maintain detailed records relating to transferred conventional arms including “the quantity, value, model/type and end users, as appropriate.” These provisions may well serve as a precursor for national registration of all handguns and rifles sold and purchased within a member party state’s territory, on the pretext that they may possibly be “diverted” into international trade at some point.
In addition to these concerns, Article 26 (1) of the treaty would place legitimate agreements between member states in jeopardy if the obligations in those agreements are deemed to be inconsistent with the treaty. The fact that the second part of Article 26 says that the treaty itself cannot be cited as automatic grounds for voiding defense cooperation agreements in their entirety does not give a pass to each and every specific contractual obligation contained in a defense cooperation agreement unless such obligation meets the test of being “consistent with this Treaty.” The problem is the loose terminology of the treaty that makes it difficult to determine with any clarity what is or is not consistent with the treaty.
For example, one of the treaty’s operative “principles” is directed at “ensuring respect” for the ill-defined norms of “international humanitarian law” and “human rights.” Other Articles refer to “relevant international law,” and “relevant United Nations instruments.” Article 6 prohibits a state party from transferring any conventional arms covered by the treaty if “it has knowledge” that the arms would be used in “attacks directed against civilian objects or civilians protected as such.”
Such provisions in the new treaty can be used by Palestine (now recognized by the United Nations as a “state” for the purposes of the Arms Trade Treaty and many other UN-related activities) and the Palestinians’ allies to target United States “transfers” of conventional arms to Israel on the grounds that they abet Israel’s alleged violations of international humanitarian law and human rights law.
The Palestinians and their allies have been setting the stage for this line of argument for years. Back in 2006, for example, The Electronic Intifada posted the following from a group called the Council for the National Interest founded by two former U.S. congressmen with decidedly anti-Israel views: “Israel is using weapons supplied by the United States to target Palestinian civilians and civilian infrastructure in the Gaza Strip in violation of the U.S. Arms Export Control Act, the Foreign Assistance Act and the Geneva Conventions… Israel’s attacks on civilians and civilian infrastructure in the Gaza Strip are a violation of the Geneva Conventions and constitute war crimes.”
Although Hamas, Hezbollah, and other terrorist groups regularly use Palestinian civilians as human shields and store their weapons and munitions in or very close to mosques, schools, hospitals, homes and other civilian facilities, it is Israel that is regularly accused by UN bodies and human rights groups sympathetic to the Palestinians’ propaganda of deliberately attacking civilians and civilian objects.
The Islamist-dominated United Nations Human Rights Council, to which the United States belongs, has repeatedly accused Israel, without any credible evidence, of persistently violating international human rights and humanitarian law and committing war crimes and crimes against humanity. President Obama helped to legitimize the decisions and findings of this atrocious body by deciding to have the United States join it. The result is that the UN Human Rights Council, whose other members include some of the world’s worst human rights abusers, is in the position of establishing international human rights norms, which may be incorporated into the application of the Arms Trade Treaty in assessing the legality of arms transfers to Israel and other U.S. allies.
If the Senate refuses to ratify the Arms Trade Treaty any time soon, as expected, President Obama may nevertheless adopt the key provisions of the treaty in one of his Constitution-busting executive orders as part of his aggressive gun control agenda. For the reasons outlined above, that would be a very big mistake.
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