The Arms Trade Treaty and American’s Rights- An Insider Look at the Arms Trade Treaty and How it Developed
By MG (Ret) D. Allen Youngman, Executive Director of the Defense Small Arms Advisory Council (DSAAC)
On April 8, 2013 the United Nations General Assembly approved an Arms Trade Treaty (ATT) text crafted in two negotiations conferences, four preparatory committees, and two open-ended working groups over a period of more than five years. It will be opened for signature in June of this year and enter into force when 50 countries have signed it. This article will discuss the role of the Defense Small Arms Advisory Council (DSAAC) in that process and offer our perspective on what the ATT may or may not mean to our segment of the defense industry in coming years.
By way of introduction, DSAAC is a 501(c)(6) trade association comprised of most of the US-based firearms manufacturers who serve the military market, both domestic and international. While other organizations serve the larger defense industry, there are none focused exclusively on military small arms and our mission, therefore, is to serve as the voice of our member companies in dealing with issues that are unique to our segment of the industry.
DSAAC was formed in 2004, initially for the primary purpose of insuring that the US Army's weapons procurement practices continued to comply with the Federal Acquisition Regulation's requirement for full and open competition and that US weapons manufacturing companies would continue to have a fair chance at winning future small arms contracts, a matter that was then somewhat in doubt. Since that time, we have engaged in a number of other issues, for example, initiating a dialogue with the US State Department's Directorate of Defense Trade Controls (DDTC) to make the firearms export licensing process more transparent and predictable.
In early 2006 we became aware of the accelerating proliferation of arms control initiatives in the United Nations and sought entry into the process in order to insure that our interests were represented. The first UN event in which we participated was the 2006 five-year review of the Program of Action on Small Arms and Light Weapons. (Actually, it's "The Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects", a relatively brief title for a UN initiative.) While the challenges posed by the PoA are significant and ongoing, the proposed Arms Trade Treaty quickly took center stage.
The advertized purpose of the ATT was to require countries who become parties to adopt meaningful and hopefully effective national laws, based on agreed international standards, for regulating the export and import of conventional arms such as tanks, combat aircraft, attack helicopters, artillery, combatant naval vessels, and, presumably, small arms and light weapons. Realistically, 99% of the energy and rhetoric concerning the treaty has always been about small arms, not larger weapons systems. It's also instructive that only about 25% of the world's countries currently have even rudimentary regulations covering the topic.
The US and some other exporting nations had for several years questioned the point of such a treaty since, if its only goal is to require all nations to adopt arms export and import regulations, it would have been a simple matter for the delegations from those countries without them to simply go home, sit down, and...adopt export and import regulations. It doesn't take an international treaty to do that. For this reason, and others, for several years the US voted against proceeding to the negotiations stage. However, by mid-2008 it became apparent that there was going to be an Arms Trade Treaty and continuing to vote against it—joined reliably only by Zimbabwe—would only prevent the US from playing a meaningful role in shaping its text. For that reason, more than the change of Presidential administrations, in 2009 the US joined in approving a General Assembly resolution that authorized convening of a conference to negotiate an ATT.
The US joining in the process, however, was subject to a number of "redlines", points that we considered non-negotiable. Number One was that "the Treaty process must be based on consensus", meaning that all parties must agree or else there is no treaty. This was not going to be yet another negotiation in which we were prepared to be out-voted by countries with a combined population less than that of many mid-sized US cities. Number Two, significantly, was that "an ATT will not undermine Second Amendment rights or other U.S. constitutional or legal protections; an ATT will only address international transfers of arms and will not prohibit or address the internal transfers of states."
DSAAC's going-in position was that US military arms manufacturing companies are already subject to the strictest export licensing system in the world and frequently at a competitive disadvantage because many of our foreign rivals in the global market enjoy a relative absence of oversight. If an ATT were to subject small arms manufacturers in other countries to a degree of governmental regulation similar to that with which we must comply—thereby leveling the playing field—and contained nothing harmful to our interests or those of our citizens, we would not necessarily oppose it.
It was obvious that we needed to engage in the negotiations process in order to achieve early detection of problematic language and look for opportunities to seek improvement. DSAAC's role was similar to that played by the Second Amendment Foundation (SAF), the National Rifle Association (NRA), Sporting Arms and Ammunition Manufacturers Institute (SAAMI), the World Forum on the Future of Shooting Activities (WFSA) and other firearms-related NGOs, however, we were the only organization actively participating on behalf of military small arms manufacturers. Our being there and actively engaging helped to backstop the US delegation by letting them know we were both informed and involved and thus not abandoning the process to anti-gun NGOs.
In assessing the US role in the ATT process, it's important to understand that, unlike in the Security Council, the US has no veto in the General Assembly and has to negotiate like every other country, much as some would like to believe otherwise. Our fear, of course, was that at some point—even with clear US redlines established—the US delegation would be overridden by political officials in Washington and forced to yield on key points in order to reach consensus, even if doing so was detrimental to our interests. Somewhat surprisingly, that didn't happen, evidently much to the disappointment of those who hoped the treaty really would provide an end-run around the Second Amendment.
Our main concern was that the treaty would contain language that would enable some future US administration to take actions against the lawful, civilian ownership of firearms by claiming that such actions were required in order to comply with the treaty. Although DSAAC is not primarily a Second Amendment civil rights organization (those interests are well represented at the UN by groups such as SAF and the NRA) it was nevertheless critically important for us also to address this issue for two reasons unique to our industry. First, most of our members—and virtually all of their component suppliers—are in both the military and commercial markets; what happens to the right of civilians to legally own firearms matters not only to us as Americans, but to our businesses. Second, if there was even a remote possibility of any future benefit to our industry from a treaty that imposes the same export standards on our foreign competitors, we clearly had an interest in helping develop a final text that is clearly compatible with that right of civilian firearms ownership; otherwise it would have no chance of ever gaining Senate approval.
Even more directly related to our core business interests was the concern that Mexico, supported by other anti-US countries, would succeed in inserting language that defined "transfer" in such a way that the treaty's application wasn't strictly limited to export or import transactions. Indeed, the 2 July 2012 draft, the basis for the month-long negotiations conference last year, defined the Scope of the treaty as follows:
“This treaty shall apply to all international transfers of conventional arms, “transfer” being defined as:
– a. The physical movement of arms into or from national territory and which includes the transfer of title or control over those arms, or
– b. The transfer of title or control over those arms”
The clear purpose behind the second clause was to bring any change in the ownership of a firearm—with or without accompanying international movement—under the jurisdiction of the treaty. Mexico's motive was obviously to force the US to do something to restrict the right of our citizens to purchase and own firearms.
There is an even more insidious motive that, for obvious reasons, was never discussed openly, which would have had an even more far reaching effect on US citizens. Had the Mexican effort been successful, this language could have set up a scenario in which the President of the United States signs the treaty and, even though it is never ratified by the US Senate, the Mexican government either directly or through surrogates, is then able to sue US firearms manufacturers and distributors in US federal court, alleging that they have "transferred" arms that were later trafficked to drug cartels, all in violation of the ATT. The US government, of course, could also be made a party for its failure to enact and enforce effective measures for preventing such transfers—beginning, for example, with universal firearms registration, arguably an obligation under the treaty if it applies to domestic sales. And it is easy to envision some future administration's being less than enthusiastic in defending itself against such an allegation, particularly if the only consequences of losing are being ordered by the court to do things it would already like—but lacks the domestic political muscle—to do.
While this scenario may seem farfetched, Mexico, in fact, retained a New York law firm in November 2010 for the express purpose of finding a way around the Protection of Lawful Commerce in Arms Act (PLCA) of 2005, legislation that was critical to the survival of US manufacturers who were then hemorrhaging funds to fight meritless but ruinously expensive lawsuits. A key success for Mexico and its allies would have been a judicial determination that the President's signature of the ATT—under his power to conduct foreign policy—trumps the PLCA.
Anyone wondering how this could be even imaginable in the absence of Senate ratification needs to understand that under Article 18 of the 1969 Vienna Convention on the Law of Treaties, a country like ours with a bifurcated system for treaty ratification—where the head of state can sign it but another branch of government is responsible for its ratification—becomes bound upon signing not to act contrary to the "object and purpose" of the treaty. [This is, in fact, the status of the 1969 Vienna Convention itself.] While it would be difficult to predict the ultimate outcome of such a lawsuit, it is easy to predict the financial impact of years of litigation on US manufacturers, particularly if a fellow-defendant federal government mounted only a weak defense—or even admitted that the plaintiffs were right. It's also worth noting that Article 27 of the 1969 Vienna Convention prohibits a party from invoking "the provisions of its internal law as justification for its failure to perform a treaty [obligation]."
It should be noted that all of the costs of this onerous litigation would serve to put some US firearms companies out of business, and pass on the costs to the US consumers for those companies that did survive, thus pricing even more Americans out of their right to own the firearm of their choice.
Therefore, one of the key fights for us was to insure that the Mexican language did not become part of the final text. Fortunately, the US delegation was both sensitive to our concerns and already aware of the implications of the Mexican attempt and, through a series of long and brutal negotiations, succeeded in deleting that entire section. There is no comparable language in the final text that could be readily applied to domestic firearms transfers. Those who have doubts are encouraged to read the final text for themselves; the document is labeled A/CONF.217/2013/L.3 and it is located at http://www.un.org/ disarmament/ATT/docs/Draft_ATT_text_27_Mar_2013-E.pdf
[Note: Blog authors and others , for example, who attempt to equate the provision about "national control lists" with universal firearms registration need to actually read the text of the treaty where they will find that this provision simply reserves the decision to each nation as to which weapons it will include in the list of those whose export and import it will regulate.]
There is still a lot wrong with the ATT. For one thing, its basic premise insures that not much will happen in the way of combating the human suffering caused by small arms and light weapons in the wrong hands in conflict zones around the world. This is more about the people than the weapons. A treaty that depends upon national governments to develop and implement arms export and import regulations—something they have been free to do all along without a treaty but which most have declined to do—is unlikely to accomplish much in the areas where it is needed the most. A big part of the reason is that the primary source of those weapons is not the illicit trade but is instead the weak and corrupt governments that will still freely trade in them. The only remedy for the chaos in most of those places is the outbreak of honest and effective government, something that the ATT can do little to achieve.
Another thing is that, even for a treaty, it's pretty ambiguous. This can be either a good or bad thing, depending on who's doing the interpreting and when. Much of the ambiguity was deliberately sought by the US delegation in preference to a highly detailed document that would likely have included things that were clearly objectionable to us. And considering that the overall purpose of the treaty was to establish a common framework of standards that nations should employ when deciding whether to authorize an arms export but reserve to those nations both the mechanics and the decision itself, a certain amount of ambiguity is both inevitable and good.
On the plus side, the harmful provisions that some countries and NGOs sought didn't make it into the final text. While we would have greatly preferred clear and unequivocal language excluding lawfully owned civilian arms from the scope of the treaty, we got the next best thing which was an absence of language including them.
During the ATT process, I personally developed a profound respect and appreciation for the patriotism and skill of the US delegation—led by Assistant Secretary of State Tom Countryman and Senior Negotiator Don Mahley. While it's easy to become cynical about government officials in general, these two and their team stood up for our country throughout days and nights of long and painful negotiations in which it was frequently and literally the US against the rest of the world. They, in fact, did precisely what they said they would do going in and, speaking for myself, I was proud of them as I think anyone actually there and participating would have been. They fought the good fight.
Much continues to made of the great unlikelihood of the US Senate's ever ratifying the ATT. We can expect to see great pressure brought to bear in the future on Senators by NGOs, other governments, domestic gun control groups and snarky editorial writers, likely without success. Part of their pessimism about the treaty's future stems from the overall political mood of our country these days and our utter lack of enthusiasm for any program (with the possible exception of UNICEF) originating in the United Nations. But part will be directly blamed on "misrepresentations" by pro-firearms groups concerning the nature of the treaty. The irony will be that the groups insisting the most loudly that nothing in the treaty could ever possibly impact lawful civilian firearms ownership in this country are also the same groups that bitterly—and successfully—opposed including simple language in the ATT that would have excluded from its scope firearms that are legally owned and used domestically and are not moved in international commerce, language that perhaps would have raised the comfort level of enough US Senators to someday approve the ATT. That these same groups are now hoist with their own petard (a weapon system whose future export and import may—or may not—be subject to the ATT) is their own fault; for five years DSAAC tried to warn them.
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