Negotiations at a United Nations conference over a proposed Arms Trade Treaty, which would regulate conventional arms sales across borders, ended in July without a report. The talks will likely resume, however, and many are concerned about the treaty’s implications for the Second Amendment. The concern is justified, given the treaty’s goal is weapons control. Its terms are vague and could be used to launch efforts to attack the constitutional right to bear arms.
Foreign treaties are signed by the president and ratification is approved or rejected by the U.S. Senate, thereby bypassing the House of Representatives. The current administration has stated on more than one occasion it believes Congress is an impediment to its policies; thus, attempting gun control by foreign treaty may be considered the path of least resistance, particularly if the treaty specifics do not come to light prior to approval. Once passed, vague treaty terms could be more restrictively defined.
How did we get here? The United Nations process started in 2001. In 2006, the U.N. General Assembly requested opinions on an arms treaty, and the results were published in a 2007 report by the Secretary-General. This was followed by a 2008 report and the establishment of an open-ended working group. In 2009 the General Assembly resolved to convene a conference on the Arms Trade Treaty in 2012 “to elaborate a legally binding instrument on the highest possible common international standards for the transfer of conventional arms.”
The initial U.N. conference on the treaty was held July 2-27, 2012. A Review Conference will be held Aug. 27 to Sept. 7, 2012. The supporting resolutions and documents for these conferences reference a “Programme of Action,” but not the points of action themselves. Thus, the original document is critical, and by referencing only the “Programme of Action” the full implications of the treaty language have not been central to the public debate.
The initial goals of the “Programme of Action” were set out in 2001, and subsequent meetings have been held to propose measures to be taken to trace, monitor and control small arms (see page 7 of the hyperlinked document, which is also page 13 of 29 in the pdf file). Among other things, the Programme of Action resolves to “prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects” by “strengthening or developing agreed norms and measures at the global, national and regional levels … placing particular emphasis on the regions of the world where conflicts come to an end and where serious problems with the excessive and destabilizing accumulation of small arms and light weapons have to be dealt with urgently.”
Potential concerns about the process and the language might include:
- References to “regions of the world … [with] serious problems with the excessive and destabilizing accumulation of small arms” and the focus on “porous borders” in more recent U.N. documents, lead many to the conclusion the U.S.-Mexico border is a focus of the treaty. Mexico is part of the leadership of the treaty conference.
- The treaty resolution is to control the “illicit” trade. That leaves “illicit” open for interpretation, and it is not clear what party or parties will set the interpretation. If the U.N. passed a resolution that the manufacture or ownership of any type of gun (or ammunition) was illegal, then all small weapons could be “illicit.”
- If gun (or ammunition) ownership is illicit, the treaty could conceivably justify an international effort to put in place “adequate laws” in the United States as deemed acceptable to the U.N.
- If gun ownership was illicit, the treaty would require criminal penalties.
- Similar issues arise with the interpretation of “stockpiling.” Could the term be defined as a single weapon? More than three bullets?
- The treaty encourages moratoria on weapons.
- Treaty implementation encourages the use of regulations and administrative procedures to accomplish the goal, again bypassing the full Congress.
Experience has taught that an idea or policy can be approved or passed, only to have the idea and concept redefined to implement an entirely different outcome that never would have passed the vote in the first place. This U.N. treaty raises the concern that the U.S. may sign away its sovereignty on the gun ownership issue.
One might wonder what this Arms Trade Treaty would look like when implemented. The answer hinges on the interpretation of specific terms mentioned above, such as “illicit” and “stockpiling,” as well as “adequate laws, regulations and procedures,” “legal” and “destabilizing accumulation.” For one possible outcome, one needs to look no farther than Venezuela. On June 1, 2012, a new Venezuelan gun control law promoted by the administration of President Hugo Chavez went into effect that makes the sale and manufacture of weapons and ammunition illegal and requires all weapons to be registered. Only the military, police and security personnel are permitted to purchase a firearm or ammunition. It is interesting to note that Venezuela’s close ally, Iran, is on the leadership committee for the Arms Trade Treaty.
With mistrust surrounding the recent Fast and Furious scandal, the federal government’s efforts to provide U.S. citizen gun information to foreign governments through eTrace, and a belief Obama administration officials would like to see greater gun control, it is no wonder there is serious concern about the U.N. Arms Control Treaty. The treaty appears to be yet another tactic “under the radar” aimed at the Second Amendment.
As early as last summer, 13 U.S. Senators sent a letter to the president reflecting this concern. On July 26, 2012, a bipartisan group of 51 U. S. Senators sent another letter to President Obama and Secretary of State Hillary Clinton threatening to oppose the treaty if it did not protect America’s constitutional right to bear arms. When the Arms Trade Treaty conference group announced on July 27, 2012, that it had failed to come to an agreement, it cited the changing U.S. position the day before as issue. One could therefore assume the Arms Trade Treaty was a U.S.-led effort that could neither stand without the current administration’s participation, nor without language that might infringe on the American right to bear arms.
Have efforts for gun control slowed? No. As a separate move toward gun regulation, a Senate amendment was submitted on July 25, 2012, the day before 51 Senators sent a letter to Obama regarding the Arms Trade Treaty. The amendment was submitted for attachment to the Cyber Security Act (S.B. 3414) and would make it illegal to transfer or possess large capacity feeding devices such as gun magazines, belts, feed stripes and drums of more than 10 rounds of ammunition with the exception of .22 caliber rim fire ammunition. As reported in the Congressional Record for July 25, 2012, the amendment has been tabled for the time being.
What will likely happen in current months? A variety of tactics may be at work. U.N. committee members are discussing efforts to bring the proposed report and treaty before the U.N. General Assembly in September. Mexican representatives have been quoted as saying there will certainly be a treaty in 2012. Western diplomats believe the negotiations will be revived after the election. The State Department has stated the U.S. would support a second round of negotiations next year. Then there may also be continued efforts to attach amendments to legislation that otherwise is deemed vital to the nation.
Joan Neuhaus Schaan is the fellow in homeland security and terrorism at the Baker Institute, and the coordinator of the Texas Security Forum, and serves on the advisory board of the Transborder International Police Association. She has served as the executive director of the Houston-Harris County Regional Homeland Security Advisory Council and on the board of Crime Stoppers of Houston, Inc.