March 5, 2013
The U.N. Arms Trade Treaty (ATT) is a bad idea. But it’s not a bad idea because it’s a gun grab. It’s a bad idea because it will restrain the democracies, not the dictatorships. It’s a bad idea because it cannot work.
Above all, it’s a bad idea because, when it fails, its supporters are going to do what comes naturally to them: blame the United States and demand a new treaty that imposes even tighter, supranational controls.
The ATT, in other words, is not an event: it’s a process. That is one reason why calling it a gun grab is wrong and unhelpful. The U.N. is an incompetent organization, and many ATT supporters are remarkably naïve in their belief that a treaty will stop human rights abuses around the world.
But one thing the U.N. and the treaty supporters do have on their side is that they are persistent. Focusing on the risks of a gun grab actually discourages Americans from paying attention to the real problem, which is the slow exertion of pressure on the U.S. to remake its policies and practices. That has implications far beyond the Second Amendment.
The basic problem with the ATT — and not just the ATT — is that it embodies an approach to international law that departs profoundly from the approach embodied in the U.S. Constitution, which created the U.S. government as the agent and voice of the American people. In a recent speech, Harold Koh, the State Department’s Legal Adviser, summarized this new approach:
Make no mistake: this is not your grandfather’s international law, a . . . top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. . . . Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.
This approach obviously has implications for the Second Amendment. Many treaty advocates make no secret of this fact. Koh himself has argued that “the only meaningful mechanism to regulate illicit [international arms] transfers is stronger domestic regulation,” and that “[s]upply-side control measures within the United States” are essential.
The U.N. argues that the “arms trade must therefore be regulated in ways that would … minimize the risk of misuse of legally owned weapons” and that “advocacy efforts should be developed” to combat “the powerful cultural conditioning that equates masculinity with owning and using a gun.”
But the problem is bigger than the Second Amendment. Under this new approach, the U.S. government is not merely (or even not primarily) supposed to transmit the choices of the American people into the world at large: it is supposed to receive the views of the world at large and transmit them to (or enforce them upon) the American people. That “swirling interactive process” could just as easily be used to “download” norms that would seek to change the meaning of the First Amendment, or the laws of war.
The U.S. has what is commonly regarded as the most well-developed arms export control system in the world. But that will not stop the treaty advocates from arguing that U.S. arms sales to Israel — to take only one example — violate the norms supposedly established by the treaty.
And over time, unless the U.S. resists clearly and stoutly, Koh is right: this argument will end up changing U.S. policy. The changes will be subtle, and they will be slow, but the treaty advocates are always glad to take 10 percent, knowing that their persistence in pursuing the other 90 percent is their biggest advantage.
Any ATT that is likely to emerge from the negotiating process will offer any U.S. administration that wished to take them a number of justifications to impose further administrative controls on firearms. And it is certain to subject the U.S. to continual pressure at every future ATT review conference to move closer to the so-called international consensus on this issue, and on every other issue relevant to the ATT.
That is not a gun grab: it is the slow, steady exertion of administrative pressure at home and international pressure abroad.
What the ATT will not do is exert pressure on Iran, China, Russia or any of the bad actors responsible for the genuinely troubling parts of the international arms trade. It will leave them free to carry on, for the simple reason that the ATT, like any treaty, will be meaningless unless it is enforced. The world’s democracies will enforce it upon themselves, but the world’s dictatorships will not. And given the regularity with which U.N. arms embargoes are violated, there is certainly no reason to believe the ATT will be enforced by the U.N. Security Council.
The ATT represents exactly the kind of diplomacy that the U.S. should shun. It is driven by an intensively naïve community of NGOs and a transnationalist legal community, will do nothing to advance U.S. interests, and is bound to become a scourge for the backs of all future U.S. administrations. It is not just — or even primarily — Second Amendment activists who should oppose the ATT: it is anyone who believes that aspirational treaties are bad for American sovereignty, bad for American rights, and bad for American interests.
–Ted Bromund is senior research fellow in The Heritage Foundation’s Margaret Thatcher Center for Freedom.
First appeared on The Blaze.