Government representatives from more than 190 countries, under the watchful eyes of gun control advocates such as Amnesty International and the Control Arms Coalition, are currently in negotiations at the United Nations headquarters in New York to hammer out the terms of the first UN Arms Trade Treaty (ATT). The treaty is supposed to fill the gap caused by the absence of commonly agreed international standards for the transfer of conventional arms, including guns, and their diversion to the illicit market.
Negotiators are working feverishly towards completing their work so that a treaty will be ready to be signed by the end of this month. Secretary of State Hillary Clinton may be in New York for the occasion.
Things got off to a curious start as the Palestinians tried to take a short-cut towards achieving upgraded UN member state status by attempting to be seated as a full-fledged state party to the treaty negotiations. The gambit did not work, but the Palestinians did secure a seat in the front row of the conference room where talks on the treaty are taking place. And the Palestinians' patron Iran was elected to a vice president position on the 15-member executive committee steering the talks.
After that inglorious beginning, the talks began in earnest. Some of the talks are being held behind closed doors. Other meetings, including a plenary session that I attended, are open to the press. Documents compiling member state comments as well as working committee chairman drafts are periodically circulated among the participants.
One such working draft of possible treaty language, dated July 14, 2012, tried to assuage the concerns of gun rights proponents, particularly in the United States, that the treaty would interfere with their constitutional right to keep and bear arms. It did so by affirming in its preamble "the sovereign right of States to determine any regulation of internal transfers of arms and national ownership exclusively within their territory, including through national constitutional protections on private ownership."
The problem is that preambles have no binding legal effect in a treaty or a contract. Thus, the disclaimer is legally meaningless. What counts are the operative provisions within the body of the document. The proposed treaty language does not clearly define its jurisdictional limitation to covering only exports and imports between and among the member states. It could be interpreted as requiring regulation and control of the domestic possession and sale of firearms if there is any chance, no matter how remote, that such firearms could be, in the words of the draft text, "diverted" to "unauthorized end users."
In practical terms, in order to ensure against such diversions to unauthorized users outside the United States in violation of the UN treaty, the federal government would need to impose very rigorous regulations and controls on the possession and sale of all guns, together with registration, detailed record-keeping on U.S. gun ownership and surveillance of the whereabouts of privately owned firearms at all times. The treaty could end up giving foreigners access to the records of American gun owners.
Ironically, the Obama administration can be expected to use the results of its own horribly botched Fast and Furious escapade, which led to the unaccounted for diversion of weapons that government agents were supposed to track on the way to Mexican cartels, as justification for strict regulations imposed on gun possession and sale by private individuals within the United States.
Moreover, while the proposed treaty deals primarily with military-type conventional weapons such as tanks, military aircraft, naval vessels and missiles, the category of "small and light weapons" is a different story. The language proposed in the July 14th working draft does not limit this category to weapons intended and designed for military use. In other words, the UN treaty would extend its reach to guns manufactured and used solely for civilian purposes. Attempts by a few member states to insert a proviso in the operative provisions of the treaty to make clear that its scope is limited to small and light weapons intended only for military use have met major resistance. Regulation of ammunition is also included within the scope of the current draft treaty language.
In addition to imperiling individual freedoms of Americans under the Second Amendment to keep and bear arms, the treaty language as currently drafted could imperil America's vital interests. For example, the treaty could preclude the United States from transferring weapons to help states fight terrorists, on the grounds that the weapons would be helping the states commit alleged human rights violations against "resistance fighters." This will surely be the charge leveled against U.S. transfers of arms to Israel, for example.
Regardless of the consequences to Americans' constitutional freedoms and national security, the Obama administration appears ready to go along with the treaty. It is yet another example of President Obama's willingness to outsource American foreign policy and individual liberties to the United Nations.
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