Last week, the United States announced its support for U.N. efforts to develop a new treaty regulating international trade in conventional arms. The terms are still far from settled, but draft provisions from a U.N. review conference last summer provide a rough guide on how the treaty might work. In this post, I want to highlight some of the key provisions and then explain a likely practical hurdle to U.S. ratification. In a subsequent post, I’ll address a Second Amendment objection raised by treaty critics.
The latest draft suggests that the treaty would have four basic dimensions. First, it would establish a limited number of categorically prohibited international transfers. These include transfers in violation of a measure adopted by the U.N. Security Council pursuant to the Council’s peacekeeping authority; transfers in violation of other international obligations; and transfers made for the purpose of facilitating genocide, crimes against humanity, or certain categories of war crimes.
Second, the treaty would limit the power of states to export conventional arms by requiring assessments on whether proposed exports would contribute to or undermine peace and security. Mandatory considerations would include whether the arms could be used to commit a serious violation of international humanitarian law, human rights law, or an offense under international treaties relating to terrorism. In the event of an “overriding risk” of one of these consequences, the treaty would prohibit the exporting state from authorizing the transfer. The treaty would also require exporting states to “consider taking feasible measures” to make sure that the arms are not diverted to the illicit market, used to commit gender-based violence, or used by transnational organized crime.
Third, the treaty would impose obligations on arms-importing states. These parties would be obligated to provide information to help their exporting counterparts complete the required risk assessments. Importing states would also have to “put in place adequate measures that will allow them to regulate, where necessary, imports of conventional arms,” and “adopt appropriate measures to prevent the diversion of imported conventional arms . . . to the illicit market or for unauthorized end use.”
Finally, the treaty would impose an assortment of other requirements regarding brokering, record-keeping, and reporting. Each state would have to “take appropriate measures, within its national laws, to regulate brokering taking place under its jurisdiction,” including by requiring brokers to register or obtain written authorization before engaging in brokering transactions. And each state would have to “maintain national records, in accordance with its national laws and regulations, of the export authorizations or actual exports” of arms, and, “where feasible, details of those conventional arms transferred to their territory.” Parties would then submit to the United Nations annual reports on transfers.
Proponents argue that the treaty is necessary because international trade in conventional arms is a multi-billion dollar enterprise that contributes to instability, crime, and rights violations, and yet encounters a surprising absence of international regulation. As one British official explained, “Global rules govern the sale of everything from bananas to endangered species to weapons of mass destruction, but not guns or grenades.” But if the final treaty text is anything like the most recent draft, U.S. ratification is doubtful. Practically speaking, fierce opposition from U.S. arms manufacturers is guaranteed. In 2011, U.S. arms-export agreements with developing nations amounted to $66.3 billion, or an astounding 78.7% of the total global market share. Russia came in second with a comparatively paltry $4.8 billion in deals. It is hard to believe that the Senate will be able to withstand the likely tidal wave of pro-export lobbying.
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