On October 31, 2008, the U.N. General Assembly voted 145 to 2
with 18 abstentions for a resolution entitled "Towards an arms
trade treaty: establishing common international standards for the
import, export and transfer of conventional arms." The two nations
voting against the resolution were the United States and Zimbabwe.
The October resolution envisions a "legally binding treaty" that
creates "common international standards" for "the import, export
and transfer of conventional arms," including small arms and light
The U.S. should continue to oppose any treaty based on the
October resolution. Although putatively intended as an arms control
measure that would reduce conflicts and limit the ability of
terrorists and organized crime to obtain weapons, the treaty
contemplated by the resolution would in reality be a license to
almost all states, no matter how irresponsible, to buy and sell
arms. The projected treaty would endanger U.S. arms export control
policy, clash with the Constitution, offer a dangerous
justification for dictatorial rule, and make it illegal under
international law for the U.S. to support freedom fighters
The "growing global consensus" rhetoric that the treaty's
backers use to characterize its goals makes it unwise for the U.S.
to ignore the campaign for the treaty. If the U.S. ignores it, the
treaty will be drafted and adopted based on the October resolution.
The treaty will then be established as another destructive
precedent in multilateral arms control and a "norm" for sympathetic
lawyers and judges in the U.S. to draw upon and thereby subvert
The U.S. should act now to clearly establish its opposition to
the projected treaty and should work to bring other, more
creditable states to its side.
The October 2008 vote followed a U.N. General Assembly vote in
December 2006 to create the U.N. Group of Governmental Experts to
explore a possible treaty on the global arms trade and six years of
agitation by the Control Arms campaign, which is run jointly by
Amnesty International, the International Action Network on Small
Arms, and Oxfam International. More broadly, it is the
culmination of a post-Cold War crusade against the global trade in
After several years of academic conferences and campaigns by
nongovernmental organizations (NGOs), U.N. Secretary-General
Boutros Boutros-Ghali brought the movement to the U.N. in 1995 when
he encouraged states to focus on "the weapons that are actually
killing people in the hundreds of thousands." Kofi Annan, the next
U.N. Secretary-General, reinforced the campaign in 2000 by calling
for a worldwide effort to prevent war by reducing the "illicit
transfers of weapons, money, or natural resources" that he argued
help to fuel conflicts.
The Campaign's Five Flawed
The campaign was founded on five flawed premises that continue
to be influential today.
First, the campaigners argue, as Boutros-Ghali implied,
that small arms are responsible for most of the deaths in the
contemporary world's wars. With the end of the Cold War, the
campaigners came to believe that the time had come to turn the
focus of arms control away from weapons of mass destruction to
small arms, which previously had seemed less important.
This argument is based on the misconception that the world's
states are as seriously interested in controlling small arms as the
superpowers were in controlling nuclear weapons during the Cold
War. This argument is based ultimately on the belief that the end
of the Cold War, by eliminating the antagonism between the West and
the Communist bloc, has brought an opportunity for universal
cooperation. This belief is regrettably incorrect. The divide
between East and West, while obviously fundamental, was not the
only source of conflict in the world, and the collapse of Communism
has done nothing to end many other political, ethnic, religious,
social, and cultural clashes.
Second, as Annan implied, the campaign is based on the
argument that the small-arms trade is responsible for fuelling and
even causing wars. Because of the dominant role of Western NGOs in
the campaign against the arms trade, the greater transparency of
Western governments, and the broad tendency of the NGO community to
blame the West for the ills of the rest of the world, this argument
tends to focus on the West's supposed responsibility for this trade
while minimizing or ignoring the far greater responsibility of
More broadly, the argument expresses the venerable liberal
misconception that weapons cause wars. This naïve assertion
was a feature, for example, of the campaign against the "merchants
of death" who were supposedly responsible for the First World War.
In reality, wars and the hatreds that drive them create the demand
for and supply of weapons.
The October resolution rests in part on the logically flawed
assumption that arms themselves are evil and the cause of what is
wrong. However, arms, as such, have no moral content. What matters
are the purposes for which the arms are acquired and used. Efforts
to control the arms will have no effect on the purposes.
Third, the campaign relies for justification on the claim
that, as U.K. Ambassador for Arms Control and Disarmament John
Duncan states, "many of the irresponsible activities [of the
exporters] are not even illegal." Thus, the argument goes, the U.N.
needs to advance a treaty to "put pressure on business to behave
This is a remarkable claim for several reasons. U.N. Security
Council Resolution 1373, passed unanimously on September 28, 2001,
in the wake of 9/11, already requires all U.N. members to take
wide-ranging actions against terrorism, including "eliminating the
supply of weapons to terrorists." By definition, assisting
organized crime is against the law. Therefore, in some cases, the
proposed treaty seeks to ban the supply of arms in cases where the
supply is already illegal.
Furthermore, all U.N. member states already claim to have export
and import controls on arms. For instance, Iran states in its
official submission on the projected treaty that it "has enforced
and continues to enforce effective measures to prevent and curb the
illicit trafficking and transfer of such weapons." In Iran's case, this
is an obvious falsehood, but it points out again that the problem
is not an absence of law, but an absence of enforcement.
Finally, there is no need for a treaty to "put pressure on
business." If a state believes, for whatever reason, that arms
should not be exported to a particular country or area, it should
declare an arms embargo. The argument that states can stop arms
exports only by exerting pressure on businesses through the U.N. is
a confession of their governments' unwillingness to act.
Fourth, the campaign has rapidly moved away from the
realm of arms control into the realm of human rights and
development. Harold Koh, former dean of the Yale Law School, and
other activists have heralded this as an advance because it gives
them a way to make the issue appealing to everyone in the West.
This, in turn, has enabled them to move faster than arms control
negotiations normally proceed.
Yet this is also a dangerous retreat from reality. Arms control
negotiations move slowly because vital national interests are at
stake, and it is therefore important not to make mistakes. Small
arms may be small, but they are arms nonetheless. Failing to treat
negotiations for their control with the care accorded to
negotiations for the control of larger weapons systems is a recipe
for a rushed and flawed negotiations process.
The small-arms control process has proceeded with a speed
dictated by a politically driven desire to achieve rapid success
and with a corresponding failure to devote serious attention to a
complex issue that involves virtually every state in the world.
Recasting arms control as a human rights issue has made negotiating
a treaty easier by making it less serious. That is a problem, not a
Fifth, at times, the campaigners appear to believe that
they know what they are talking about. In the most literal sense,
this is untrue.
While the U.S. and some states regularly publish information on
their exports of conventional arms, most states do not. Thus, the
publicly available data are extremely unreliable--especially the
data for dictatorial suppliers such as Russia and China and most of
the world's importers. Furthermore, there are absolutely no
regularly published, official statistics on, for example, Iran's
supply of weapons to Hezbollah or Hamas. Campaigners rely on
statistics published by Western governments, which minimize the
responsibility of non-Western regimes, and on information provided
by organizations such as the Stockholm International Peace Research
SIPRI itself admits that "[t]he only means of making assessments
of the financial value of the arms trade is to rely on official
data provided by governments and industry bodies. There are
significant limitations on using official national data in this
way." This is correct. Even SIPRI's data for U.S.
exports are badly flawed and incomplete. For instance, SIPRI
reports that the U.S. sold no conventional arms to Slovakia in 2006
or 2007, but the U.S. reported $10.57 million in
sales for fiscal year (FY) 2007. The data for other nations
are of even lower quality.
This is not a minor technical problem, but a fundamental barrier
to negotiating a serious treaty because it affects even the most
important conventional weapons. For example, the precise
destination of the 33 T-72 tanks seized by pirates off Somalia in
September 2008 remains publicly unknown.
If the world cannot determine where major weapons systems are
headed, it has no chance of policing small arms. If the treaty
were to cover-- as Control Arms demands--"small arms and light
weapons, heavy weapons, military support equipment, components and
parts, technology for making arms and 'dual use' items which have
both civil and military applications," it would become even more
impossibly broad because it would include almost every conceivable
The low quality of the data is particularly troubling given that
the world's dictatorships and terrorist groups rely on receiving
arms from states that regularly conceal their trade. One analyst
has summed up the situation by noting that China, in particular, is
"the country of choice when you want to buy cheap and simple
weapons, such as Kalashnikovs, rocket-propelled grenades and
For example, in April 2008, a Chinese vessel making a delivery
from Beijing sought to land more than 77 tons of small arms in
South Africa for shipment to Zimbabwe. A Chinese spokeswoman
defended the extensive arms trade between China and Zimbabwe as
"normal" and "prudent and responsible." The shipment became known
only because dockworkers in Durban, South Africa, refused to unload
the cargo. It appears that the cargo was eventually
delivered by way of Angola.
For its part, Russia's arms sales hit a post-Soviet high in
2008, with major customers including China, Algeria, Venezuela, and
Iran. In 2006, the International Herald
Tribune described Russian sales as "seemingly immune to ethical
debates that affect the industry elsewhere."
The claim is sometimes made that Chinese shipments are a minor
part of the international arms trade and of negligible importance
compared to larger U.S. sales. However, unless states
such as Saudi Arabia are included in the definition, the U.S. is an
extremely minor supplier to the developing world. In 2007, the top
five purchasers in Africa received only $16 million in deliveries
from the U.S. To Africa as a whole, the U.S. made less than $25
million in deliveries in FY 2007. This is insignificant compared to
the $280 million in arms sales to Canada and the $1 billion in
sales to South Korea.
These sales are a matter of public knowledge. The fact that much
of the arms trade is not public does not stop the Control Arms
campaign from claiming that "political action by the world's
governments" is "imperative." Indeed, Control Arms at
times uses its own admitted ignorance as a further reason to
proceed rapidly, arguing that one purpose of the arms trade treaty
is to bring the arms trade out into the open. Control Arms does
not appear to have realized that the states responsible for
concealing their trade and selling to the world's worst regimes are
the same ones that will be responsible for negotiating and
enforcing the arms trade treaty.
Treaty-Making Process Is Under Way
This desire to move quickly is evident in the actions of the
U.N. The passage of the October resolution has resulted in the
creation of a working group that will meet twice a year through
2011. This group is charged with the eventual
creation of a legally binding treaty to create common standards for
the international import, export, and transfer of arms. The subject
will be considered again at the 64th session of the General
Assembly in 2009.
Thus, the treaty-making process is already well under way and
has acquired considerable momentum. Its course so far is strongly
reminiscent of the campaigns that led to the treaties banning
anti-personnel land mines and creating the International Criminal
Court (ICC), in which an NGO-driven process led to a humiliating
U.S. defeat in the vote on the Rome Statute in 1998. It
is a dangerous sign that the U.S., unlike many other U.N. member
states, failed to make a submission to the Group of Governmental
Experts. The U.S. was ably represented on this group, but its
failure to make a submission implies inattention at best and
divided counsels at worst.
Neither deficiency can be allowed to persist. The U.S. has taken
a beating in the world press and in the court of public opinion by
being paired with Zimbabwe as the only two states opposed to the
U.N. resolution. Few commentators and none of the treaty's
advocates noted the significance of the Chinese and Russian
The U.S. statement in the General Assembly before the vote was
serious, but it did little to elucidate the issues for a press
already predisposed to favor the treaty. The U.S. is being defeated
in the realm of public diplomacy and is doing nothing to make up
ground, thus setting itself up for more defeats--or tame
acquiescence--in the years to come. Yet the treaty has not yet been
drafted, so the U.S. still has an opportunity to clarify its own
thinking and make its case.
Failings of the Projected Arms trade
The projected arms trade treaty, as contemplated by the General
Assembly's October resolution, is fatally flawed for several
Flaw # 1: The projected treaty will
undercut U.S. embargoes and damage U.S. arms export control policy
by enshrining lowest-common-denominator standards.
As of March 25, 2009, the U.S. maintains full or partial arms
embargoes against 26 states or entities. The U.S. strictly applies
U.N. Security Council arms embargoes, but only 12 of the current
U.S. embargoes are the result of action by the Security Council.
By mandate of the council, the U.S. operates full or partial
embargoes against Cote d'Ivoire; nongovernmental forces in the
Democratic Republic of the Congo; nongovernmental forces in Iraq;
proliferation-related activities in Iran; nongovernmental forces in
Lebanon; Liberia; North Korea; nongovernmental forces in Rwanda;
nongovernmental forces in Sierra Leone; Somalia; the Darfur region
of Sudan; and al-Qaeda, the Taliban, and associated actors. In
some cases, such as Iran, the U.S. embargo is far more
comprehensive than required by the U.N. The U.S. operates
embargoes that are not mandated by the Security Council against
Burma, Belarus, Cuba, Cyprus, Eritrea, Haiti, Libya, the People's
Republic of China, Sri Lanka, Syria, Venezuela, Vietnam, Yemen, and
Of the non-U.N. embargos maintained by the U.S., the European
Union (EU) has matching embargoes against only Burma and Zimbabwe.
Reliable data on Chinese and Russian exports are not available. Of
course, the EU has a much better record than China and Russia, but
given that many EU member states are among the treaty's leading
proponents and are often considered responsible arms sellers,
comparing their records to that of the U.S. is reasonable.
- EU member states frequently sell arms to states embargoed by
the U.S. For instance, in 2006, Germany issued export licenses for
almost 2 million euros of arms exports to Libya.
- The EU does not always fully implement Security Council arms
embargoes. In 2006, Germany issued export licenses for over 187,000
euros of arms exports to Iran. There is no EU embargo against
- EU arms embargoes are not necessarily respected in practice.
Germany exported 22,000 euros of military weapons to Sudan in 2006,
one year after the EU mandated an arms embargo.
- The EU can be very slow to follow the U.N.'s lead. The EU did
not embargo Somalia until 2002, 10 years after the U.N. acted.
- EU member states are willing to sell to states with dubious
human rights records. Germany exported over 22 million euros of
military weapons to Venezuela in 2006 and issued licenses worth
over 2.5 million euros for arms exports to China.
In short, by either U.N. or EU standards, the U.S. has one of
the world's most restrictive policies on the export of arms. While
often accused of basing its foreign policy on commercial
considerations, the U.S. is one of the few states willing to forgo
military sales to make a political or moral point. This contrasts
with the willingness of leading European states to supply arms to
regimes such as Iran and Venezuela.
The goal of the projected treaty, as the title of the U.N.
resolution states, is to develop "common international standards
for the import, export and transfer of conventional arms." Because
they are not based on decisions of the Security Council, more than
half of the U.S. embargoes violate existing common international
standards. The U.N. resolution calls upon states to "fully comply
with arms embargoes decided by the Security Council," but it does
not acknowledge their right to have higher standards. Instead, it
"acknowledg[es] the right of all States to...import...conventional
arms." By this standard, the U.S. is arguably
restraining 14 U.N. member states from exercising their rights.
Because the projected universal treaty will be based upon the
consensus views of all participating U.N. member states, it will
enshrine the lowest-common-denominator standards for importing,
exporting, and transferring conventional weapons. The treaty's
standards will therefore be lower than U.S. standards. It would
also open the U.S. to a legal challenge--albeit a frivolous
one--from embargoed states such as Iran, which would argue that the
U.S. is illegally constraining trade with it and is violating the
"common international standards" enshrined in the treaty. Finally,
irresponsible U.S. manufacturers could use the treaty to challenge
existing U.S. arms export control legislation as incompatible with
the treaty's lower standards. Together, these effects would
seriously damage U.S. arms export control policy.
This explains why Iran emphasizes that all disarmament treaties
must be multilateral, guaranteeing that the higher U.S. standards
will not prevail. The projected treaty will subvert, not
strengthen, arms control standards.
Flaw # 2: The U.N. has not defined
The October resolution states that the absence of "common
international standards" is a contributing factor in "crime and
terrorism." This wrongly implies that U.N. member states agree on
what constitutes terrorism. Otherwise, they cannot negotiate a
treaty supposedly intended in part to deny arms to terrorists.
In fact, U.N. member states have not reached agreement on what
constitutes terrorism. The U.N. has not adopted the proposed
Comprehensive Convention on International Terrorism because of
resistance from the Organization of the Islamic Conference (OIC),
which seeks to insert the sentence: "The activities of the parties
during an armed conflict, including in situations of foreign
occupation...are not governed by this Convention."
This argument runs through submissions by member states on the
projected arms trade treaty. For example, Algeria, while claiming
to support the treaty, states that it must be concluded in
accordance with "[t]he right of self-determination and the
liberation struggle." Pakistan refers to "the right of peoples
to self-determination...and the illegality of aggression [and]
foreign occupation." In another U.N. forum, a Pakistani
delegate observed on the OIC's behalf a need "to make a distinction
between terrorism and the exercise of [the] legitimate right of
peoples to resist foreign occupation."
The OIC's clause would destroy the concept of terrorism, because
it would legitimize the activities of any terrorist--or
terrorist-supporting state--that claimed to be resisting foreign
occupation. In particular, Algeria's and Pakistan's statements and
the OIC's efforts are thinly veiled attempts to protect the
unabated transfer of small arms and other conventional weapons from
OIC members to Hamas, Hezbollah, and other non-state organizations
waging a campaign of terrorism against Israel or, in Pakistan's
case, to groups fighting to "liberate" Kashmir from India.
This makes nonsense out of the idea of negotiating a worldwide
treaty based on a shared definition of terrorism, because no such
shared definition exists. As a result, the treaty will simply be
based on a decision to disagree about what constitutes terrorism,
which will leave those states free to continue supporting
Flaw #3: The treaty fails to recognize
the culpability of U.N. member states.
Most terrorists have access to weapons because they are the
clients of states, such as Iran, that are also violating existing
U.N. Security Council resolutions that are intended to prevent such
diversions. Under the projected treaty, these same states would be
responsible for preventing any "diversion of conventional arms from
the legal to the illicit market."
For example, in mid-April, The Wall Street Journal
reported that the Obama Administration was "pushing for a formal
censure of Iran and Syria at the United Nations over an
arms-smuggling case." The report came after an Iranian-chartered
cargo ship in Cyprus was found to be carrying "bullet shells,
high-explosive gun charges and items related to 125-mm
armor-piercing guns" that were ultimately destined for Hamas or
Hezbollah. Iran's involvement in such smuggling is not new, but as
one EU official noted, "What's new is that they got caught in the
act.... We now have the evidence." Iran predictably denied the
charges, and the chairman of the Iranian shipping firm stated that
the weapons were "logically not prohibited goods, because we do not
ship prohibited goods."
As long as the treaty's supporters are unwilling to face the
reality that U.N. member states are deliberately supplying
terrorists with weapons, the treaty will fail. By subverting U.S.
arms embargoes and acknowledging the "right of all States
to...import...conventional arms," the treaty will actually
facilitate the buying and distribution of weapons by rogue
These states will not carry out their treaty obligations.
Instead, they will simply deny that their actions are illegal by
pointing to their acceptance of the treaty. They will then use
their self-proclaimed compliance to further conceal their
violations of that treaty. Ultimately, the treaty will offer them
another way to elude their responsibility for the actions that
claim so many lives. The treaty is flawed because it repeats the
fundamental flaw of the U.N.: universal membership and the U.N.
premise that all states are alike, equally deserving of respect and
Flaw #4: The treaty will be a buyer's
and seller's charter.
Because the U.N. resolution supporting the treaty proclaims that
all states--unless subject to a U.N. Security Council embargo--have
"the right...to manufacture, import, export, transfer and retain
conventional arms," the projected treaty will allow all suppliers
to sell to almost all comers. This clause was the most
frequently requested element in the submissions of U.N. member
states on the projected treaty.
The treaty masquerades as an arms control measure, but if it
were adopted with this "right to buy" clause intact, any supplier
would be entirely within its rights to sell any conventional weapon
to Cuba, Haiti, the People's Republic of China, Syria, Venezuela,
or any other dictatorship. If the U.S. protested, the supplier
could reply that its actions were sanctioned by international
treaty and by a global consensus confirming the existence of the
right to buy.
Thus, the treaty is not simply an attack on U.S. arms export
control policy and the higher standards expressed in the U.S. arms
embargoes. It would establish a presumption of legitimacy for the
arms trade around the world. In reality, the treaty is a buyer's
and seller's charter, not an arms control measure.
This fact sheds important light on the support from EU member
states and such organizations as the British Defence Manufacturers
Association (BDMA). The BDMA has stated, "we warmly welcome the
principle behind the international arms trade treaty," which "is
intended to...achieve a greater degree of harmonization" of export
control systems. These "harmonized" systems would of
necessity have weak standards, because they would enshrine the
lowest common denominator. Many defense manufacturers would
naturally welcome such a development.
More broadly, a popular European fiction is that U.S. diplomacy
is a tool of commercial interests. In fact, commercial
considerations drive European diplomacy, even though it is
regularly cloaked in idealism, more often than they drive U.S.
diplomacy. Given shrinking European defense budgets, the European
arms industry would struggle to survive without foreign sales. A
treaty that enshrines the right to buy and sell would be very
useful to the European states that are among the world's leading
arms suppliers, because it would allow them to sell to almost all
comers while claiming that the treaty sanctions the practice. By
supporting a treaty that is supposedly intended to control arms
transfers but in reality legitimizes sales to almost all national
buyers, these states are serving the interests of their arms
exporters and, more important, the employees of these firms.
Similarly, the Non-Aligned Movement, an influential U.N. voting
bloc of former Third World nations, also supports the treaty for
largely self-interested and diverse reasons. Cuba wants the U.N. to
focus on "the most modern and sophisticated" conventional arms,
leaving untouched its greater trade interests in smaller weapons. On
the other hand, Tanzania wants the U.N. to include "a specific
clause on small arms and light weapons, which have become 'weapons
of mass destruction' in Africa." While small arms have
certainly done much damage in Africa, controlling such weapons
would be extremely difficult, and such a treaty would leave the
Tanzanian government and other, less credible regimes free to arm
themselves as they see fit.
In practice, all states that are not under Security Council
sanction have the right to buy and sell conventional weapons. The
U.N. resolution implies that this right is part of the inherent
right of all states to self-defense, as recognized in Article 51 of
the U.N. Charter. However, this is only an inference. Article 51
does not explicitly recognize the right to buy and sell. This
places the U.S. in a difficult situation. It should support
recognizing the right of democracies to self-defense and to buy and
sell, but it should not accept that dictatorships possess these
rights, because they do not respect the inherent right of
self-government and are not properly constituted states.
However, no treaty negotiated through the U.N. will
differentiate between the rights of dictatorships and democracies.
Therefore, if a treaty is to be negotiated, the best course of
action is to preserve the status quo in which the right to buy and
sell is based on customary international law, not on a treaty.
Codifying this right would make it impossible to move toward a
world in which the right of import and export belongs only to
democratic nation-states. By formally treating all states as if
they were alike, the treaty would retreat from the reality that not
all states are alike or deserve to be treated as such.
Flaw #5: Monitoring and enforcement of
the treaty will be biased and irresponsible.
A central problem with human rights treaties is that they are
not enforced. Indeed, because they concern internal conduct, not
external action, they are exceptionally difficult to enforce.
One problem with treating arms control as a human rights issue
is that the unenforceable model of human rights diplomacy
contaminates the model of arms control negotiations, in which
enforcement concerns have long been central. Instead of remaining
enforced and verified agreements between sovereign states, treaties
are becoming expressions of aspirations. Demonstrating rhetorical
commitment to the "correct" position on an issue by adopting a
treaty, even if it is useless or destructive, has become more
important that achieving the ends set out in the treaty.
Any arms trade treaty drawn up for signature will likely follow
the verification and enforcement precedents embodied in other
universal treaties. Signatories will be responsible for submitting
annual reports to a monitoring body. In theory, this is the correct
way to proceed because it respects the sovereignty of the world's
states and accords with the reality that the U.N. is their agent,
not their superior. Of course, states such as Iran will not police
themselves effectively or submit honest annual reports. If they
followed through on their obligations, the treaty would not need to
concern itself with the "diversion" of arms to terrorists,
because the armed support of terrorism is already illegal.
It makes perfect sense for the democracies of the world to
submit their own reports, but it makes none to believe that Iran
and the other dictatorships will not continue to make a mockery of
the system. One of the proposed treaty's champions argues: "In the
Democratic Republic of Congo we have a U.N. arms embargo, but it
has proved totally ineffective. That is why an Arms trade Treaty
has become so important." According to this non sequitur,
because many countries violate their existing multilateral
agreements, the world should adopt a new multilateral agreement to
fix the problem.
This is not a serious argument. By proudly quoting it, Control
Arms, the NGO leading the campaign for the arms trade treaty,
illustrates its failure to grasp the dilemma that is inherent in
relying on states such as Iran to live up to their treaty
The monitoring body will also be problematic. Because the treaty
will be universal, the monitoring body will be drawn from the U.N.
member states as a whole. It will therefore have no meaningful
membership standards and will be incapable of providing effective
oversight--a weakness repeatedly exhibited by other U.N. bodies.
For example, Libya was chosen in 2007 to chair the preparatory
committee for the U.N.'s Durban Review Conference. The U.N. Human
Rights Council includes such luminaries as Saudi Arabia, China,
Russia, and Cuba, and a representative from Syria, which has a long
history of supporting terrorists, was a vice-chair of the U.N.
General Assembly's Disarmament and International Security Committee
The monitoring body for the arms trade treaty will be similarly
stacked with states that have no serious interest in resolving the
problems that the treaty would supposedly address. Even Control
Arms admits that "[t]he current patchwork of national arms controls
is riddled with loopholes and poorly enforced." As evidenced by
this fact and by their current behavior, many states are not
responsible now. The treaty will not magically instill
responsibility in buyers or sellers who do not already possess
Instead, these states will use the monitoring body to score
political points and achieve political ends. The U.N. Commission on
Human Rights, the predecessor of the Human Rights Council, was so
notoriously biased against Israel and deferential toward
dictatorships that Secretary-General Annan acknowledged in 2005
that the "commission's declining credibility has cast a shadow on
the reputation of the United Nations system." The council has
been just as bad as its predecessor, targeting Israel in 23 of its
A universal arms trade treaty will necessarily establish this
kind of body. The states that do not respect the treaty will use it
to gang up on their favorite targets: Israel, the U.S., the West,
and their regional enemies. Iran's statement in support of the
treaty notes that "the largest arms-producing and exporting
countries should undertake special responsibility in any
international arms trade arrangement.... [C]ertain Western
countries have always been at the top of the list of the five
largest exporters." This declaration foreshadows what Iran
hopes to gain from the treaty: another forum for declaiming against
the West and denouncing Western arms sales to its regional enemies,
such as Saudi Arabia and Israel, in an effort to reduce their
ability to resist its aggression.
The treaty's monitoring body will thus become a venue in which
Iran and other states can conceal their own violations while trying
to disarm their neighbors and discredit the world's democracies.
U.S. arms embargoes will be attacked as examples of American
unilateralism, but the monitoring body will always find
insufficient evidence to condemn the flagrant violations of
dictatorships, just as the world has been unable to summon the will
to act against Iran's nuclear program. States such as Rwanda, which
is fragrantly violating the U.N. arms embargo on the Democratic
Republic of the Congo, will use the body to seek to condemn foreign
shipments to their enemies while concealing their own support for
"liberation" movements against their neighbors.
In short, as long as an overwhelming majority of the world's
states are not democratic, no monitoring body drawn from those
states or system of self-reporting can be effective. In today's
world, the projected arms trade treaty will not be monitored or
This is particularly problematic given that the monitoring body
will be responsible for interpreting how to apply the treaty's weak
common standards. The criteria for acceptable arms transfers in the
October resolution include the need to respect "international human
rights law," "international humanitarian law," the U.N. Charter,
and "peace, reconciliation, safety, security, stability, and
sustainable social and economic development." Once the monitoring
body is established, nothing can prevent it from using its power to
interpret this vast range of criteria to discriminate against one,
some, or all of world's democratic nations.
The monitoring body will then either pass resolutions or refer
reports to the Security Council for action. Any resolutions passed
by the monitoring body will be unenforced expressions of majority
opinion that will likely target the U.S., Israel, or the West. If
reports are referred to the Security Council, the U.S. veto could
protect the interests of the U.S. and its allies, but resorting
regularly to the veto would put the U.S. in a bad light. Even if
the monitoring body refers only sensible reports, the Security
Council already passes too many toothless, unenforced resolutions.
It clearly lacks the time, ability, and willpower to deal on a
case-by-case basis with the conventional arms trade, especially
when Russia and China--two permanent members that are involved in
the worst elements of that trade--can veto any effort that would
affect their interests.
Finally, the International Criminal Court could be an
alternative avenue of enforcement. Article 25 of the Rome Statute
states that "a person shall be criminally responsible and liable
for punishment for a crime within the jurisdiction of the Court if
that person...aids, abets or otherwise assists in its commission or
its attempted commission, including providing the means for its
commission." This raises the possibility that, if the
U.S. ratifies the Rome Statute or if the ICC prosecutor initiates
an investigation into an alleged crime, the court could investigate
and charge U.S. policymakers who were responsible for selling or
providing arms to a government or rebel group accused of criminal
actions on the basis that they were "providing the means" for the
commission of purported war crimes, crimes against humanity, or
Flaw #6: The treaty would restrict the
ability of the U.S. to support armed resistance to
If the U.S. were to sign a treaty based on the October
resolution, under international law, it could no longer arm the
opposition to hostile or even genocidal regimes. This was an
important tool for both Democratic and Republican Presidents in
opposing the spread of Communism in South America, Africa, and Asia
during the Cold War. The policy became known in 1985 as the Reagan
Doctrine, but it was employed by Presidents before and after
Reagan. Under the projected arms trade treaty, these Presidents
would have been guilty of violating international law.
This policy has continued in the years since the end of the Cold
War. For example, on October 31, 1998, President Bill Clinton
signed the Iraq Liberation Act, which declared it the "policy of
the United States to support efforts to remove the regime headed by
Saddam Hussein from power in Iraq." To that end, it authorized
military assistance to the democratic opposition to Saddam Hussein.
Providing such assistance would have been illegal under the
Similarly, the Bush Administration, as authorized by Congress,
began to provide nonlethal military assistance to the so-called
Government of South Sudan in early 2007, and the Obama
Administration has continued this policy. The Government of South
Sudan is technically not independent from Sudan; the region will
have the opportunity to vote for independence in 2011. By supplying
military assistance, the U.S. is anticipating the outcome of that
referendum and thus subverting the authority of the Sudanese state.
Under the projected treaty, these actions could be subject to a
legal challenge from Sudan.
Furthermore, the projected treaty makes no distinction between
states that support terrorists in the name of totalitarianism and
genocide and those that support groups resisting totalitarian and
genocidal governments. The treaty would make U.S. support for any
freedom fighters illegal under international law but would have no
practical effect on dictatorial regimes' ability to support
terrorism aimed at the U.S., Israel, or other democracies around
the world. It is wrong to sign a treaty that puts support for
tyranny and resistance against tyranny on an equal moral and legal
Flaw #7: The treaty poses a danger to
the Second Amendment and legitimates dictatorial rule.
The projected treaty would require all signatories to have the
"highest possible standards" to keep weapons away not just from
terrorists and organized crime, but also from all "criminal
activity." Although the Group of Governmental Experts noted that
any treaty would need to respect the member states' internal
affairs and constitutional provisions, such as the Second
Amendment, the October resolution ignored this stipulation.
This lends credence to the argument that the "highest possible
standards" requirement is intended as an assault on the Second
Amendment right "to keep and bear arms," because there is
ultimately no guarantee that any privately held gun in the U.S.
will never be used in criminal activity. The "highest possible
standards" requirement and the Second Amendment are therefore
ultimately incompatible. This is particularly troubling given the
U.N.'s hostility to the import of guns by or the transfer of guns
to all non-state actors, including private citizens.
Because the treaty reserves exclusively to states the right to
import arms, it poses a potential threat not only to the right to
own, but also to the private right to buy or acquire by import.
This is not simply a danger to the U.S. All democratic states
have the right, subject to their constitutions, to regulate the
possession of firearms as they see fit. However, the treaty would
give the world's dictatorships a legal pretext for imposing
far-reaching civil controls and regulations ostensibly to prevent
criminals from obtaining arms.
Dictatorships will not hesitate to employ such controls in any
case, but there is no reason to sanction the controls under
international law. Nor is it proper for the U.S.--founded by the
revolt of armed citizens in 1776--to endorse the principle that the
people have no right of armed rebellion against tyranny or to back
a treaty that encourages states to disarm their citizens. Such a
treaty would connive with dictators in oppressing their own people
and would make their regimes more stable by disarming and therefore
disempowering their internal opponents.
Flaw #8: The treaty would infringe on
Like most human rights treaties, the arms trade treaty is an
example of aspirational treaty making. It aspires to end practices
in which most states engage. As these practices are entirely under
national control, the states are evidently uninterested in
abandoning them. Treaties are commitments by states to do or not to
do certain things. As such, treaties constrain the inherent right
of self-government that is the basis for national sovereignty.
In the international context, such constraints can be justified
only by an agreement that other states will similarly constrain
themselves. That agreement is embodied in a treaty, but if other
countries refuse to abide by it after signing it, the constraint on
the right of self-government--and U.S. sovereignty--becomes
one-sided. Because the behavior of the world's states testifies
that they do not want to curtail the practices that the treaty
would seek to control, this treaty would be an unbalanced and
therefore illegitimate constraint on American sovereignty.
Flaw #9: The treaty would have
additional perverse effects.
Most of the treaty's effects would be perverse, but three
additional dangers deserve to be highlighted.
First, if the treaty does indeed reduce--against all
evidence--the size of the conventional and heretofore legal arms
trade, it will do nothing to reduce the demand for conventional
arms. Thus, it will increase the incentive to supply arms
illegally. The reality is that the problem is not the supply of
weapons, but the political conflicts that create the demand. The
answer to the problem of the illegal arms trade will not be found
in supply-side controls.
Second, the treaty will encourage states and terrorist
groups to reduce their reliance on international trade and to
manufacture their own weapons, which is relatively simple in the
case of many conventional weapons. It is much more difficult to
monitor domestic production than it is to monitor international
trade. Just as the ban on land mines has not discouraged Iraqi
insurgents and the Taliban from using improvised explosive devices
(IEDs), an arms trade treaty will only drive the parties in a
conflict to rely less on legitimate international trade.
Third, the treaty's most significant NGO supporters
openly admit that it is aimed at U.S. support of Israel. Rebecca
Peters, director of the International Action Network on Small Arms
(IANSA), noted when speaking on the 2007-2008 Gaza conflict:
If combatants [Israel and Hamas] are violating international
humanitarian law, then states supplying them with weapons are
knowingly assisting these violations and must bear some
responsibility. An Arms trade Treaty would prohibit such arms
Peters noted Hamas's violations in passing but made no mention
of the arms smuggling from Iran and other states that abets its
terrorism. She also asserted that "[t]he most obvious case [of a
supplier assisting in the violation of international humanitarian
law]...is the continuing US supply of arms to Israel."
IANSA is not just another NGO. It is one of the founders of the
Control Arms campaign and "the organisation officially designated
by the UN Department of Disarmament Affairs (DDA) to coordinate
civil society involvement to the UN small arms process."
The Control Arms campaign makes a similar claim, although
without specifically stigmatizing Israel and the U.S., stating that
"a transfer of weapons or munitions will be stopped if there is
evidence that the weapons are likely to be used for grave
violations of international human rights, humanitarian law, or will
adversely affect sustainable development." If the treaty
includes such terms, which were in the U.N.'s October resolution,
they will be subject to interpretation by the treaty-monitoring
body. Given the abysmal record of U.N. human rights organizations
and treaty committees, these terms will likely be interpreted to
limit Israel's ability to import arms. Thus, while pretending to
reduce conflict, the treaty will actually encourage aggression by
reducing the power of Israel and, potentially, other small
democracies to defend themselves.
Standards for an Acceptable Arms trade
Despite its many serious flaws, the proposed arms trade treaty
could be revised to help to control the illicit sale and transfer
of arms to terrorists and organized crime and to reduce the supply
of weapons to ongoing civil conflicts. At a minimum:
- The treaty should be based on President Ronald Reagan's
cautious approach to arms control agreements: "trust, but
verify." This means that reliable data must be
available on which to base verification. States should not proceed
with a treaty that controls the trade in particular items until all
parties agree that the necessary data on these items are available.
A limited treaty that applies to a few carefully defined items will
be easier to verify and easier for the U.S. to support than a
treaty that seeks to cover everything.
- The treaty should recognize that all states have the de
facto right to regulate the import, export, and transfer of
arms according to their national standards. The mandatory
application of universal standards will necessarily produce an
enforcement regime that reflects the lowest common denominator,
thereby weakening U.S. arms export control policy and undercutting
U.S. arms embargoes.
- While respecting the inherent right of self-defense, the treaty
should not create new rights that make it easier for dictatorships
and the terrorists they support to acquire weapons.
- Because many U.N. members are undemocratic states, the treaty
should not have universal membership, because the responsibility
for monitoring and enforcing the treaty should not be given to
states that cannot be trusted with this serious duty.
- The treaty should not rely on multilateral organizations to
monitor and enforce compliance. The Nuclear Non-Proliferation
Treaty, which has not prevented North Korea and other states from
acquiring nuclear weapons, demonstrates that multilateral arms
control compliance regimes face serious challenges. Instead, the
treaty should follow the traditional model of arms control
agreements, which are monitored by nationally appointed experts
working on behalf of their states and ultimately enforced against
violations by the threat of national renunciation of the
- The treaty should not legitimize dictatorial rule or seek to
impose restrictions on arming non-state, non-terrorist groups that
are rebelling against tyranny and oppression.
- The treaty should unconditionally respect the internal affairs
and constitutional provisions of all states, including the right
"to keep and bear arms" as guaranteed in the U.S. by the Second
The Danger of Inaction
The U.S. might decide simply to ignore the ongoing U.N.
negotiations and allow the treaty to be negotiated and signed
without actively opposing it. The justification for this approach
would be that the U.S., as evidenced by its embargoes, already
takes seriously its responsibilities as an arms supplier. If other
states wish to adopt a treaty devoid of substance, that is their
However, this approach would be a mistake. The U.S. cannot
afford to ignore the treaty negotiations, because the treaty's
proponents clearly have other goals in mind that are not in the
American interest. Some wish to use the treaty to restrict Israel's
right to import arms. Others, such as State Department Legal
Adviser Harold Koh, refer regretfully to the fact that they "are a
long way from persuading governments to accept a flat ban on the
trade of legal arms," implying that the treaty would be
merely a step toward that ultimate goal.
Even more seriously, the treaty's proponents are already
referring to it as representing a "growing global consensus."
This is the language of legal transnationalism, a theory endorsed
by activist scholars such as Koh. According to Koh, one of his
roles as Legal Adviser to the State Department is to "help
maintain...habitual compliance with internalized international
norms." He has also praised what he describes as "sympathetic
people from within government" who take it upon themselves not only
to ensure compliance with previous norms, but also to promote new
ones. Finally, Koh argues that international norms are as
obligatory on the U.S. as ratified treaties and that U.S. judges
have the responsibility to enforce these norms within the U.S. when
they interpret statutes and the Constitution.
Koh has defined a process that he believes should be used to
evade and overcome what he regards as a serious problem: the
refusal of consecutive U.S. Administrations and the Senate to give
favorable consideration to the treaties he supports and the
policies he favors. Under his process, the U.S. can be driven into
compliance with whatever he supports without the need for the
Senate's advice and consent. In short, once the treaty is adopted
by even part of the "international community," liberal legal
activists will claim that the treaty's provisions have become norms
that bind the U.S., regardless of whether the U.S. is a party to
the treaty. Those activists will then petition U.S. courts to
internalize the norms created by the treaty.
This has happened before. In recent years, liberal NGOs and
foreign courts, in their ongoing effort to place a complete ban on
the death penalty, have successfully integrated certain norms
regarding who may be sentenced to death.
In 2002 and 2005, the liberal justices of the U.S. Supreme Court
undemocratically internalized certain norms relating to the death
penalty in the cases of Atkins v. Virginia
and Roper v. Simmons. In these cases, the Court
declared that the death penalty could no longer be imposed on
defendants who were mentally retarded or who committed their
crimes, no matter how heinous, while under the age of 18. This was
done even though neither the relevant state legislatures nor
Congress had passed laws to that effect. In Roper, the Court
based its ruling partly on the prohibition against the juvenile
death penalty in the U.N. Convention on the Rights of the Child--a
treaty to which the United States is not a party.
The U.S. therefore cannot afford to ignore the proposed arms
trade treaty. If it does, it will be forced to pay attention sooner
or later. If later, the U.S. will have lost any hope of changing
the language of the treaty for the better. Even now, given the
overwhelming majority of U.N. members that supported the October
arms trade resolution, the U.S. will have great difficulty
successfully reshaping the terms of the proposed treaty.
The low prospects for success should not deter the U.S. from
making its case. Speaking up may not stop the process, but it will
establish a record of clear and consistent objections to the
treaty's failings that may carry weight with U.S. judges if the
treaty's supporters seek to litigate cases based on it in American
courts. Given the ascent of the doctrine of transnationalism, such
a record--even a reservation or understanding by the Senate if the
treaty is submitted for ratification--may be insufficient to
protect Americans' rights, but remaining silent will certainly not
What the U.S. Should Do
The United States needs to take a measured approach to the
upcoming negotiations on the proposed arms trade treaty. While the
U.S. should continue to participate in the New York-based working
group, it should not allow this participation to be mistaken for
acquiescence in or agreement with the discussions or any resulting
treaty. Specifically, the U.S. should take a firm position against
any treaty that is based on the fundamentally flawed model of the
U.N.'s October resolution.
- The U.S. should judge the acceptability of any treaty that
emerges by the following tests and should refuse to sign any treaty
that does not meet all of them.
- Does the treaty recognize the legitimacy of nationally declared
arms embargoes and, more broadly, avoid enshrining
- Does the treaty contain an agreed definition of terrorism that
differentiates between terrorism (the use of violence against
civilians by non-state actors to achieve political ends) and armed
rebellion against tyrannical and oppressive regimes that do not
respect the inherent right of self-government?
- Does the treaty clearly and unconditionally respect the rights
of the private citizens of member states to keep and bear
- Does the treaty avoid establishing a right to buy and instead
leave this question as a matter for customary international
- Is membership in any monitoring body established by the treaty
restricted to law-abiding states that have a strong and consistent
record of controlling the transfer and sale of arms to terrorists
and repressive regimes?
- Do the terms of the treaty expressly state that it is not
self-executing? In other words, does the treaty require passage of
legislation to take effect domestically? Without an explicit
proviso that the treaty is not self-executing, it may be
interpreted to require domestic regulation of the sale and transfer
of arms that would contravene the Second Amendment.
- Do the terms of the treaty expressly exclude rights of
individuals and private entities to sue to enforce the treaty, to
assert rights under the treaty, or to use its provisions as a
defense against prosecution? Without such an exclusion, anti-gun
activists in the U.S. will likely file frivolous actions and other
nuisance lawsuits against gun manufacturers engaging in legal
The U.S. can and should seek to advance the control of the
international import, export, and transfer of conventional weapons
through means that are less dramatic but more effective than the
projected U.N. treaty. To this end, the U.S. should:
- Seek to use the largely inactive framework of the U.N.
disarmament organization in Geneva as a good-offices organization
in times of regional crisis to bring regional states together and
to negotiate small, geographically limited treaties to address
- Seek to secure adoption of a U.N. Security Council resolution
requiring all U.N. member states to have strong laws against
internal diversions> from government stockpiles to terrorists. The
U.S. already has such laws and could work with other responsible
states to supply technical and expert assistance to states that are
genuinely interested in reducing potential terrorists' access to
- Work through suppliers groups--such as the member states of the
Wassenaar Arrangement, the existing multilateral forum for
export controls on conventional weapons and dual-use goods and
technologies--to build up a body of knowledge and practice for use
by all states that desire to improve their export and transit
- Draw on the Proliferation Security Initiative (PSI) model to
promote expanded international monitoring of the sale, purchase,
and transfer of conventional arms. The PSI is a self-selecting,
non-treaty-based set of partnerships that cooperate on
nonproliferation. The advantages of this model are that it does not
infringe on national sovereignty and that it can be restricted to
states that are genuinely interested in achieving its ends because
it does not rely on a universal treaty.
The purported goal of the U.N. arms trade treaty is to keep guns
out of the hands of terrorists and organized criminals and to
reduce conflict. These are worthy endeavors and should have the
support of the United States and its democratic allies around the
However, a treaty based on the October 2008 arms trade
resolution will not achieve these ends. Instead, it will make it
easier for dictators and unscrupulous suppliers--including some
European suppliers--to buy and sell arms. It will also provide a
justification under international law for dictatorships to oppress
Britain, the U.S., and other reputable arms sellers do not sell
guns to known terrorist organizations. EU arms sales to
terrorist-supporting states like Iran are wrong, but the EU does
not need to support a treaty to stop these sales. It merely needs
to live up to its own declared standards. Russia and China,
theleading suppliers of arms to many of the world's worst regimes,
have not shown any serious interest in the proposed treaty.
It is revealing that Russia and China did not support the U.N.
resolution. They abstained, knowing that the U.S. would oppose it
and take the heat. Nor was the resolution backed by irresponsible
states such as Venezuela, which runs guns to terrorists in
Colombia, or Pakistan, which is notorious for its
winking relationship with the Taliban and for its support of armed
insurgent groups in Kashmir and against India.
In summary, rogue states buy guns from disreputable suppliers,
including the EU and especially Russia and China, and then use the
arms directly or transfer them to terrorists. The problem is not
the absence of an arms trade treaty. It is the U.N. members that
are supplying and buying arms, conniving with terrorists, and
killing people directly.
Thus, any U.N. treaty that seeks to control the import, export,
and transfer of conventional weapons will fail and, in failing,
exacerbate the existing evils. If all U.N. member states were
serious about its aims, no new treaty would be necessary. The
unwillingness of the treaty's supporters to face this reality is
the best evidence that the treaty is based on destructive illusions
and will be a dangerous failure in practice.
Ted R. Bromund, Ph.D., is Senior Research
Fellow and Steven Groves is Bernard and Barbara Lomas
Fellow in the Margaret Thatcher Center for Freedom, a division of
the Kathryn and Shelby Cullom Davis Institute for International
Studies, at The Heritage Foundation.