Part I

Chris Cox, the NRA’s chief lobbyist, put forth another absurd argument that the Arms Trade Treaty (ATT) will lead to national gun registration in The Hill newspaper last week. Cox argued that “Article 12 of the treaty ‘encourages’ countries to compile ‘records’ of all ‘end users; of firearms imported into their county — and to supply this sensitive personal information to the government of the exporting country.” He says, “This is gun registration on an international level, plain and simple.”

Italian shotguns and existing records

Cox wrongly argues that “if you bought a shotgun made by an Italian manufacturer, the U.S. government would keep a record of your purchase and provide your information to the Italian government.” This argument makes for a good sound bite and is effective in scaring members of Congress and the NRA. But the fallacy of his argument becomes very clear when assessing Article 8 of the Arms Trade Treaty on imports and Article 12 on record keeping, as well as existing US law.

Article 12 of the Arms Trade Treaty requires all exporters of conventional weapons to keep records on their exports. It encourages, though does not require, each State Party to maintain records of conventional arms that are transferred to its territory as the final destination. Finally Article 12 also encourages, though does not require, the records to include: the quantity, value, model/type, authorized international transfers of conventional arms, conventional arms actually transferred, details of exporting State(s), importing State(s), transit and trans-shipment State(s), and end users, as appropriate. (My emphasis added.)

Learn more at: oxfamamerica.org/armstreaty

The first question is which, if any, new records must be kept if the US signs the ATT. The truth is that the US already maintains records on both the import and export of conventional weapons, including firearms. (Again, bear with me through the legalese, which is offered for Cox’s sake.)

Individual gun owners, unless he or she is a licensed importer, licensed manufacturer, or licensed dealer, are already barred by US law from importing firearms (See 18 U.S.C § 922; and 27 C.F.R. § 447.41.). Those applying for a permit to import firearms must file with the Bureau of Alcohol Tobacco and Firearms (ATF), listing details on the importer, the exporter, the item, and the purpose of the import, including final recipient if different than the importer. Similar import records are kept by the Customs Department when inspecting shipments entering the country.

The records currently kept by the US government do not extend to commercial sales of firearms. Pursuant to the Firearms Owners Protection Act, unless the specific firearms are suspected of being involved in a specific crime, no records of firearms transactions may be recorded once the weapons enter the domestic market.  The point is the Arms Trade Treaty does not require records to be kept beyond the import records already maintained by the ATF. The details already required in a permit application are extensive and there is no requirement in the treaty to expand the records to include firearm transactions once the arms enter the stream of commerce.

“Give me all your records!”

The second question raised by Mr. Cox is whether the US is required to hand over records to potential exporters. Article 8 of the Arms Trade Treaty states that “each importing State Party shall take measures to ensure that appropriate and relevant information is provided, upon request, pursuant to its national laws, to the exporting State Part.y” (My emphasis added.)

The treaty includes this section because many countries, including the United States, often require that countries provide details on potential recipients of US arms transfers prior to transfer. The US maintains records on the armed forces receiving exported weapons and checks on whether the arms transferred are being used pursuant to the agreement. This process is called end use monitoring, and is currently routinely carried out by both the State Department through its Blue Lantern Program and the Pentagon through its Golden Sentry Program.

According to existing US law and upon request of a foreign government, ATF will certify the importation and provide evidence that shows the US importer has complied with import regulations from the ATF and customs regulations from the Department of Homeland Security. (See 27 C.F.R. § 447.51.)

Sorry Cox, unless your NRA members are the importer him or herself, none of these regulations include individual gun purchases.

The central argument coming from the gun lobby against the Arms Trade Treaty (ATT), which opened for signature on June 3, is that the treaty is a back-door way to require every American to register their firearms.

As I have said often on this blog, the National Rifle Association (NRA) and their allies are mischaracterizing the treaty. Because they are once again aggressively putting out false justifications for their argument that the ATT will lead to national gun registration, today and tomorrow I am using this space to set the record straight. Their arguments represent a gross misreading of the treaty and a lack of understanding of existing law on these subjects.

First, John Bolton and John Yoo argued in a Wall Street Journal op-ed that because Article 5 of the treaty “requires nations to ‘establish and maintain a national control system,’ including a ‘national control list’…gun-control advocates will…argue the U.S. must enact measures such as a national gun registry.”

A national control list in this context is a list of items that the federal government has determined require oversight and approval when exported from the United States to another country. The idea behind such a list is simple: Export controls have been established because it is not in the economic, foreign policy or national security interest of the United States to allow certain technologies, including arms, to be freely traded on the global market. This is not a new idea, created by the ATT, rather it is the cornerstone of US export control law, regulation, and practice.

A necessary component of such a system is the determination of which items should be subject to scrutiny and which items can be freely traded. Thus, national control lists are created to inform manufacturers and exporters when an export license is required and to alert law enforcement and custom officials which items must receive extensive oversight. (For Bolton and Yoo’s sake, bear with me through the legalese.)

The U.S. has maintained a national control list for military technology ranging from pistols to fighter jets and warships, including most firearms, for almost forty years called the US Munitions List (USML). (See PL 94–329, June 30, 1976, 22 U.S.C. § 2778.) The USML includes rifles, handguns, shotguns under 18 inches in barrel length, associated ammunition, and certain optical sighting devices. (See also 22 C.F.R. § 121.1.) The Commerce Control List, regulated by the Commerce Department has jurisdiction over the export of shotguns with a barrel length of 18 inches or more and related components, muzzle loading rifles and handguns, air guns, replica firearms, shotgun shells and components, and most optical sighting devices. (See 15 C.F.R. Pt. 774, Supp. 1.)

Learn more at: oxfamamerica.org/armstreaty

While the United States maintains the US Munitions List and the Commerce Control List, many other countries currently do not have control lists of any kind. They have few, if any, rules as to what items may be exported and under what conditions. Thus, the Arms Trade Treaty requires all countries to maintain and build effective export control systems. Countries have determined that a foundation of any effective system is the establishment and maintenance of a national control list. Article 5 of the Arms Trade Treaty requires that each State Party maintain a list and are encouraged to share the list with other countries in order to create an atmosphere of transparency and predictability in the global arms trade.

It seems disingenuous to me to see John Bolton warn about the dangers of these lists. While Undersecretary of State for Arms Control and International Security, Bolton was in charge of maintaining the US Munitions List (USML) and the State Department bureaucracy that maintains the US export control system. If the USML could be seen as a means of back-door gun control, he should have warned the world about the dangers when serving in this role, instead of waiting until he joined the board of the NRA.

It is hard to see how the establishment and maintenance of a national control list, which the United States has maintained for close to 40 years, could be used to argue that this will lead to Americans being required to register their firearms by those who know better. It’s just not true.

Part II

“The world has come together and said ‘Enough!’ to unscrupulous arms dealers, dictators and human rights abusers. We have a clear message. Your days of easy access to weapons and ammunition are over. The world is watching, and the world will hold you to account.” ~Oxfam’s Anna MacDonald today at the the UN gathering of foreign ministers and senior ambassadors

Earlier today over 60 countries took the stage at the United Nations and signed the Arms Trade Treaty. The Arms Trade Treaty is the first internationally-binding agreement to regulate the $85 billion annual trade in arms and ammunition. If implemented rigorously, the treaty will transform the global arms trade by requiring states to put human rights and humanitarian law before profits when making arms trade decisions. Major arms exporters such as Germany, the United Kingdom, and France all signed the treaty. We expect many more countries, possibly over 100, to join before the end of the year.

The United States was not able to sign today, but Secretary of State John Kerry put out a strong statement welcoming the treaty and committing the United States to sign in the very near future.

The Arms Trade Treaty was approved by the United Nations General Assembly on April 2, 2013 and it opened for signature today–two months later. This proved too short of a period for some countries to complete their internal review and for all countries to agree on the translations of the text.

Oxfam and our allies pushed the United States to be one of the first countries to sign the treaty. Unfortunately that did not happen. However, contrary to some media reports and commentaries, the reason the US could not sign was technical rather than political. It seems crazy, but there are differences in the translations of the treaty when the English base text was translated into different languages. The US did not feel comfortable signing the treaty before these differences were reconciled and authenticated.

The US approach is not surprising as the US takes its treaty obligations very seriously; the US will not normally sign a treaty when the obligations of all parties are not crystal clear. This process of reconciliation will be completed on August 28, 2013, and we expect the US to sign the treaty within weeks of that date.

The US is not the only treaty supporter to not sign the treaty today. Kenya, for example, has been a leader of the UN process toward an ATT since its inception in 2006 and was not prepared to sign today. Still, the absence of these signatures does not take away from today’s historic significance.

But now that we have the words on the paper, we need the action on the ground. The treaty will only be as strong as the commitment of countries to implement its provisions. Oxfam and our allies are not going away, and we will continue to pressure all governments to sign the agreement and rigorously implement its provisions.

Assistant Secretary of State, Thomas Countryman, made a statement last week that the US will sign the Arms Trade Treaty (ATT) in the very near future. He made it during a panel I was honored to speak on hosted by the Atlantic Council entitled, “What’s at Stake in the UN Arms Trade Treaty.” The panel also featured remarks by Retired Major General D. Allen Youngman, who represents small arms manufacturers, and David Bosco of Foreign Policy Magazine.

Assistant Secretary Countryman chose his words carefully and made clear that he could not commit the US to signing the treaty the day it opens for signature on June 3. But the debate among us on the panel that day underlines why signing the treaty on June 3 is so critical.

The panel focused on the question of whether the ATT would actually change anything. The critique I heard went something like this: because the ATT leaves it up to State Parties themselves to determine whether an arms transfer is appropriate in the context of the treaty guidelines, the treaty is unlikely to change behavior.

I am not going to argue that this critique has no merit; the treaty offers the world great promise only if governments have the political will to follow its terms. My colleagues at the Control Arms Campaign recently published a document succinctly explaining what the treaty does. The treaty establishes high global arms trade standards and states that certain arms transfers are never appropriate. The treaty will stigmatize arms transfers that would facilitate atrocities or other human rights abuses. Governments, regardless of whether they are a party to the treaty, will be compelled to follow the treaty standards or face international condemnation.

In addition to the stigma placed on certain arms transfers, the treaty’s standards are enforced by a requirement that States “take appropriate measures to enforce national laws and regulations that implement the provisions of this Treaty” and that States meet to discuss implementation and raise concerns. Many States see international arms transfers as a legitimate means of protecting themselves, their allies, and civilians. Such decisions are considered a sovereign right and most countries were unwilling to delegate that decision to any other actor or court.

Given this reality, implementation and enforcement of the treaty is dependent on the political will of State Parties to the ATT. It is up to all of us—both civil society and governments who support the treaty—to ensure that countries implement the treaty in a way that helps save lives and serves as part of the foundation for greater prosperity. Responsible implementation of the treaty must be compelled through local civil society calling on their own governments to act, international civil society naming and shaming those who violate the treaty or fail to implement provisions, and by State Parties strongly encouraging other countries to abide by the treaty and providing leadership by example.

Because the success of the treaty is dependent on political will, the opening day of signature, June 3, is of immense importance. Many countries who are skeptical of treaty will be closely observing the events of June 3 to see which States are willing to demonstrate their intent to be bound by the treaty and champion its provisions.

The United States is the world’s largest arms manufacturer and exporter. It is also the country with arguably the most advanced system of arms export controls. As with most international norm building exercises, most eyes will be focused on the actions of the United States.

If the US government decides to sign the treaty, and clearly demonstrates in its words and deeds that the treaty is in US interest, other countries will follow. Yet, if President Obama fails to provide leadership and sign the treaty on June 3, I fear that other countries will get the message that the US is not interested in the treaty becoming strong international law.

The US provided strong leadership in March by taking the extraordinary step of co-sponsoring the ATT resolution in the UN General Assembly and breaking the block of Syria, North Korea, and Iran. But US leadership must not end there. I definitely agree with my fellow panelists that treaties without action are worthless words on a piece of paper.

So sign the treaty on June 3, Mr. President. Help the US take the first step towards the treaty living up to its ideals.

History was made on April 2^nd as the Arms Trade Treaty—the first agreement to control global arms sales—received an resounding majority ‘yes’ vote at the United Nations in New York (154 votes YES, 3 votes NO, 23 Abstentions).

Photo: Rankin

This momentous Treaty is the culmination of more than ten years of diplomatic negotiations and campaigning to rein in the irresponsible trade in arms that causes so much human suffering. It could not have happened without the work of Oxfam supporters, and immense efforts from Control Arms partners and governments around the world.

The United States, which was a late supporter of the Arms Trade Treaty effort and blocked consensus in the July 2012 negotiations, voted yes on the agreement and supported strong treaty provisions. The Agreement requires countries to put human rights and humanitarian law at the center of arms trade decisions. Among other things, the treaty:

• Requires states to assess the risk of arms being used to “commit or facilitate serious violations of international humanitarian law,” and, if significant, not to authorize the transfer;
• Bans exports of both arms and ammunition when the export knows the arms would be used for “genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians, or other war crimes”;
• Requires that countries adopt a comprehensive regime of controlling the import, export, transit, and brokering of arms; and
• Includes transparency measures requiring countries to report on their arms transfers.

Though we took a moment to revel at the Oxfam America offices, there’s still more work to be done. The resounding applause and loud cheers that rang out from the UN General Assembly Hall last week is only the beginning. Work is needed to ensure that the Treaty enters into force as soon as possible. President Obama should be one of the first signatures on the treaty when it opens for signature on June 3.

Over the past decade, tens of thousands of Oxfam supporters have met with their government officials, campaigned relentlessly in all weathers to build public support, and refused to give in to doubters.

We simply wouldn’t be here if we listened to those skeptics who scoffed that “getting such a Treaty is absurd. It’s never going to happen.” But Oxfam staff and supporters all persevered and we celebrate the first global Arms Trade Treaty that will mean so much to families and communities in the Democratic Republic of Congo, Syria, Mali, and other countries wracked with armed conflict.

A version of this post originally appeared on the Oxfam International website.

***

More on the Arms Trade Treaty from Oxfam America:

Hear Oxfam America’s president, Ray Offenheiser, talk about the the meaning and impact of the first global Arms Trade Treaty on PRI’s The World.

Send a message thanking the President and his administration for the US’ leadership role.

The world will reconvene a UN conference on an Arms Trade Treaty (ATT) from March 18 to 28, 2013. While nations, including US finalize the treaty language negotiated last summer, the National Rifle Association (NRA) and its allies have mounted a campaign of lies and deliberate distortions aimed at building opposition to the treaty.

As part of our efforts to highlight the truth, Oxfam has placed ads in Roll Call this week to encourage Members of Congress to acknowledge the fact that the ATT will not impact the Second Amendment rights of their constituents.

We know that our ads will not stop the NRA from repeating and further spreading their lies and distortions. Just last week, David Keene, the President of the NRA, said in an interview that the ATT was an attempt by the Obama administration to “end-run the Constitution.”

Mr. Keene is not ignorant. He does not lack a basic understanding of how treaties fit within the US Constitutional system. No treaty can override the Constitution. The Supreme Court in Geofroy v. Riggs (1890) held that the treaty power does not extend “so far as to authorize what the constitution forbids.” The Supreme Court rarely gets more clear than it did in Reid v. Covert (1957) when it reasoned that “it would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights…[to permit] the United States to exercise power under an international agreement without observing constitutional prohibitions.”

If these two Supreme Court decisions aren’t clear enough to convince the NRA and its Congressional allies that the President cannot “end-run” the constitution through a treaty, the draft ATT text should be enough. The draft ATT states that it is the “sovereign right and responsibility of any State to regulate and control transfers of conventional arms that take place exclusively within its territory, pursuant to its own legal or constitutional systems.” In short, the Arms Trade Treaty excludes issues related to the second amendment from its scope. And even if it didn’t exclude these issues, the Constitution would not permit a treaty to override the bill of rights.

Mr. Keene’s recent statement is only one of the many lies and distortions being repeated by the NRA and Members of Congress. Oxfam has published a briefing paper on our website to help Members of Congress and the public separate the truth from the fiction.

The global arms trade is out of control and a treaty is desperately needed. An effective ATT would be based on a simple principle: no transfers of weapons when there is a substantial risk that the weapons will be used for serious violations of international human rights or humanitarian law or will impair poverty reduction. To achieve this end, the treaty will do two basic things: first, the treaty will provide clear standards by which all States judge the appropriateness of a particular arms transfer. Second, the treaty will require all States to adopt a comprehensive import and export control regime to ensure weapons entering and leaving their country are under the control of competent authorities.

No treaty will solve all the world’s problems, but the ATT will be a critical tool that for the first time will require all countries to take responsibility for their arms trade decisions. It is time for members of Congress to stop playing the NRA’s games and enter a real dialogue.

To read Oxfam America’s briefing paper, The Truth about the Arms Trade Treaty, see: http://www.oxfamamerica.org/publications/the-truth-about-the-arms-trade-treaty

“We reject the notion that lasting security and prosperity can be found by turning away from universal rights…our support for universal rights is both fundamental to American leadership and a source of our strength in the world.” President Barack Obama, May 2010 National Security Strategy.

President Obama has made it clear that security does not exist without respect for the rights of people throughout the globe. Tragically, this statement is currently at risk of being eroded by some in the administration who do not want to be restrained from selling or giving arms to bad guys.

This is the final week of the historic effort to develop a global Arms Trade Treaty. Governments have been huddled together in overcrowded rooms until the early hours of the morning hammering out a text. The goals of the negotiations are clear: develop a treaty that would prevent arms transfers to places where there is a substantial risk that the weapons will be used to seriously violate human rights or the laws of war. While the majority of states, including all of the US’ closest allies, are pushing for strong text that would prevent irresponsible arms transfers, the Obama administration is publicly stating that it wants loopholes in the treaty that would allow human rights to be ignored when national security interests are at stake. Specifically, Ambassador Donald Mahley said to the United Nations on July 12, that “it would be inconsistent with the principle of sovereign national implementation to require that [human rights and humanitarian law] criteria take precedence over criteria such as regional stability and national security.

Since when was adherence to the laws of war and protecting human rights an adversary to national and global security?

Most of the world ardently wants an Arms Trade Treaty. Millions of people have stood up and called for governments to put an end to the irresponsible arms trade and to develop rules of behavior that puts human rights and the protection of civilians at the center of arms trade decisions. The most heart-rending appeals are from the civilians who have endured the chaos and horror of unregulated combat, irregular combatants, and loose arms flowing over borders and from hand to hand.

Nepal: Maoist insurgents gather in Rukum district. It is estimated that the Maoist guerrillas of Nepal have around 10,000 hard-core fighters, including many women, backed by 50,000 'militia'. The prevalence of small arms that are affordable and easy to carry and use has changed the landscape of warfare, allowing women and children to be recruited as combatants. Credit: Ami Vitale

The US agrees with a treaty in principle. Secretary Clinton has clearly stated that an Arms Trade Treaty is needed “to ensure that all countries can be held to standards that will actually improve the global situation by denying arms to those who would abuse them.”

It seems to me that the US statement calling for human rights to be demoted below national security is heavily influenced by those in the administration’s national security team who want freedom to transfer arms to whom it wishes, even if the arms will be used in ways abhorrent to American values and interests. I am not naïve. I know that addressing national security always calls for some balancing of interests. However, the current US proposal would not only be in contrast to the Obama administration’s recent practice, but also allow nondemocratic or authoritarian governments who do not have the same reverence for human rights and want to sell or give weapons to war criminals or armed groups.

A treaty that does not clearly state that arms transfers to actors committing atrocities against their own people is unacceptable behavior is not worth having at all.  For example, what will keep Russia from claiming national security need when confronted with its arms transfers to Syria if the US creates a loophole in the international law?

According to President Obama, “the US has a commitment to an international order based upon rights and responsibilities.” It is time, Mr. President, to show that commitment and tell those who are opposing strong human rights provisions to get on board with your national security strategy and support a strong Arms Trade Treaty. The US has an opportunity to lead and to craft a global order based on the rule of law and human rights. It must seize the moment and support a strong treaty today. With only 4 days left for negotiations, time is running out.

Are there more international laws on the trade of bananas than conventional weapons, like AK-47s?

The short answer is astonishingly, yes. The global trade in bananas or banana plants is governed by at least three binding global agreements and the non-binding, though strictly adhered to, Codex food code. The arms trade is not governed by any binding global agreements.

The long answer for those who need to know the details is:

1) Bananas: As agricultural products, the trade of bananas is governed by the World Trade Organization/Uruguay Round Agreement on Agriculture. The goal of this agreement is to reform trade in the sector and to make policies more market-oriented and improve the predictability of global pricing.

AK-47s: No WTO agreement includes arms within its scope. In fact, Article XXI of the GATT exempts “the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment.”

2) Bananas also fall under the Agreement on the Application of Sanitary and Phytosanitary Measures (the “SPS Agreement”). This Agreement sets out the basic rules for food safety and animal and plant health standards.

AK-47s: The arms trade is not governed by any legally-binding agreement covering all countries. While there are some international arms trade agreements, no global agreement is binding and most agreements are regional in scope and limited by significant gaps in coverage. For example, over 40 states are not part of any regional organization that maintains an arms trade control instrument.

3) Banana safety standards are set and governed on a voluntary basis by the international food code. The Codex Alimentarius contains recommendations for voluntary application but serves in many cases as a basis for national legislation and sets the standards for the SPS Agreement. While not technically binding, international commerce on food strictly adheres to the standards set out in the Codex.

AK-47s: There are no global standards on the arms trade in regard to when a particular arms transfer is or is not appropriate. Out of a total 154 countries that have reported, only 73 countries said they have basic controls on the export of AK-47s and other small arms.

4) Banana plants, as opposed to bananas, are also regulated by an international convention: the International Plant Protection Convention which aims to protect cultivated and wild plants by preventing the introduction and spread of pests.

AK-47s: Only 56 governments have indicated they have specific crimes related to the illegal international transfer or illegal manufacturing of small arms. And astonishingly some countries do not even have criminal penalties associated with violating UN arms embargoes. (See Beyond Viktor Bout by Oxfam for details.)

Does it matter?

The fact that the world’s governments have come together to ensure the banana trade is governed by some basic rules and have not done so on the arms trade is a great concern. It is beyond ridiculous that governments and corporations are far more constrained by international law when trading bananas than when trading arms.

I have to admit that while the comparison between the amount of international law governing bananas as opposed to arms shows how absurd it is that there are no controls on the arms trade, there are significant differences between global commerce on each that need to be raised.

The goals of international agreements covering bananas are to reduce trade barriers, establish uniform enforcement of contracts, and prevent contamination of the global food supply. The primary goal of the a potential Arms Trade Treaty is to prevent conventional weapons from making their way into the hands of human rights abusers and from being used to perpetuate conflicts and undermine development. It is thus not surprising that because the goals are different the means for addressing the issue are different. Up to now, the major arms exporting states have preferred to forgo international agreements and instead address the process of making arms deals and limiting arms transfers to dangerous end-users through domestic law and regional agreements.

Notwithstanding these differences, the reluctance by countries to add global regulations on the arms trade has resulted in a patchwork international regulatory system where some states have strong controls and others have next to nothing.

The patchwork of laws allows irresponsible dealers and governments to operate in the black holes of the international regulatory system and supply weapons to entities that would use them to commit war crimes and human rights abuse with impunity.

If governments can get together to ensure food is safe and the price of bananas is free from protectionist policies, they should be able to come together and forge an Arms Trade Treaty that would save lives and protect livelihoods.