The President of the United Nations' Final Conference on the Arms Trade Treaty, Australian Ambassador Peter Woolcott, ruled on March 28th 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.
Latin American and African countries in particular, which view themselves as the victims of the unregulated flow of arms used to kill or intimidate their civilian populations, strongly criticized the three outlier countries that were thwarting the will of the overwhelming majority of member states. Mexico even urged that the treaty be approved anyway since only three countries out of 193 member states had formally objected but, after Russia protested that consensus meant that there had to be no formal objections whatsoever, Ambassador Woolcott rejected Mexico's proposal to change the UN's rules of adoption by consensus.
However, the treaty is not dead. It 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. This submission and vote could happen as early as the first week of April.
For the reasons I stated in my March 28th article, the draft treaty - while not as bad as it could have been - remains deeply flawed. The treaty covers the "transfer" of guns and rifles, which are part of the category of conventional arms listed as "small arms and light weapons." Transfers are defined as including 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.
While the treaty preamble reaffirms the sovereign right of any state to regulate and control conventional arms "exclusively within its territory," there is a whole treaty Article devoted to preventing what it calls "diversion," which can be interpreted as applying the treaty to the transfer of guns and rifles from seller to 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 this 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 an approach, 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 guns and rifles sold and purchased within a member party state's territory, since they may possibly be "diverted" into international trade at some point.
In addition to these concerns, the treaty would also place legitimate defense agreements in jeopardy if the obligations in those agreements are deemed to be inconsistent with the treaty, including the treaty's objective of promoting ill-defined norms of "international humanitarian law" and "international human rights law."
The Obama administration supports the treaty and will vote for it when the treaty text comes up before the General Assembly shortly. Secretary of State John Kerry himself may well sign the treaty, which would then have to be ratified by the U.S Senate. Such ratification 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, asserting that as commander-in-chief he is authorized by the Constitution to act on his own to stem the flow of lethal weapons to the wrong hands.
