On October 14, U.S. Secretary of State Hillary Rodham Clinton
announced that the United States would seek a "strong international
standard" in the control of the conventional arms trade by "seizing
the opportunity presented by the Conference on the Arms Trade
Treaty at the United Nations." Her announcement contained an
important caveat: The U.S. will actively support negotiations only
if the conference "operates under the rule of consensus
decision-making needed to ensure that all countries can be held to
standards that will actually improve the global situation."[1] This
caveat has been attacked by NGOs supporting the treaty process.[2]
The Administration's decision to participate on the basis of
consensus is wrong. The U.S. cannot ensure that the conference will
operate on such a basis, nor can consensus guarantee that the
U.S.'s export controls--which the Administration rightly lauds as
the world's "gold standard"--will form the basis for an arms trade
treaty. In practice, since most of the world's states have low
standards for the export of conventional arms, the U.S.'s demand
for consensus will be used to pressure the U.S. to lower its own
standards or expand the treaty in ways that would conflict with the
U.S. Constitution. The behavior of the U.N.'s member states
demonstrates that there is no basis for consensus in the
negotiation of this treaty. The pursuit of consensus, as
high-minded as it may sound, will therefore produce an ineffective
treaty.
The Demand for Consensus Is
Irrelevant
The United States does not have the power to ensure that the
negotiations on an arms trade treaty operate "under the rule of
consensus decision-making." The budget of the United Nations, for
example, is traditionally adopted on the basis of consensus, yet in
late 2007, the U.N.'s member states abandoned that tradition and
approved a budget increase of 25 percent by a vote of 142-1.[3] The
U.S. was the state that voted no. Nothing can prevent the arms
trade treaty negotiations from similarly abandoning a consensus
basis as soon as it suits the majority.
Nor can the U.S., as the Administration claims, use
consensus-based negotiations to ensure that any arms trade treaty
adopts the U.S.'s high standards for the control of the export of
conventional arms. If the U.S. insists that such standards be
verifiably adopted by all the world's states, the negotiations will
go nowhere, and the U.S. will find itself isolated and once again
unfairly described as unilateralist. The NGOs that support the
treaty will then urge the majority of states to conclude the
negotiations without U.S. approval.
The Pursuit of Consensus Is
Dangerous
The Administration argues that consensus offers a guarantee that
the negotiations will produce an effective treaty. In practice,
since the U.S. has high standards, the U.S. is itself the state
most likely to disrupt the consensus of the majority of states with
low standards. Far from being a weapon for the U.S. to use against
recalcitrant states with low standards, the demand for consensus
will be turned against the U.S. and be used to exert pressure on
America to lower its own standards so that a treaty can be
concluded.
The U.S. will then be in the invidious position of either
resisting the consensus that it demanded or accepting a treaty that
breaks with settled U.S. policy, backed by Congress for many years,
of strict export controls. This outcome is foreshadowed by the NGO
attacks on the U.S. demand for consensus, which indicate that these
organizations desire only that a treaty be completed, regardless of
its quality. Toward that end, the NGOs will strenuously resist any
U.S. efforts to follow the negotiating strategy laid out by
Secretary Clinton.
The behavior of the U.N.'s member states demonstrates that the
pursuit of consensus is a dangerous mirage. One justification
frequently offered for the treaty is that it will end the transfer
of arms to terrorists. Yet the U.N. has never been able to define
terrorism, because states such as Pakistan argue--in their official
submission on the treaty--that "the right of peoples ... to
[resist] the illegality of aggression [and] foreign occupation"
means that what the U.S. describes as terrorism is justified.[4]
Achieving a genuine consensus in negotiations with states
holding these views is close to impossible. Any consensus will come
only by adopting a treaty that has low standards, weak enforcement
provisions, or both. In practice, as the U.N. itself has
acknowledged, the U.N.'s member states have achieved consensus on
one demand: that any arms trade treaty must explicitly acknowledge
their "right ... to manufacture, import, export, transfer and
retain conventional arms."[5] No arms trade treaty can both acknowledge
that all states--including those that support terrorism--have this
right and simultaneously control the conventional arms trade.
The U.S. will also be pressured to adopt a treaty that will
conflict with rights guaranteed by the U.S. Constitution. In 2008,
the Group of Governmental Experts correctly stated that an arms
trade treaty would need to respect member states' constitutional
provisions, such as the Second Amendment. But the October 2008 U.N.
resolution ignored this stipulation and instead stated that
signatories of the treaty would have to have the "highest possible
standards" to keep weapons away from all "criminal activity." The
"highest possible standards" requirement and the Second Amendment
are incompatible, because there is ultimately no guarantee that any
privately held gun in the U.S. will never be used in criminal
activity.[6]
What the U.S. Should Do
The U.S. should:
- Support negotiations for an arms trade treaty that respect
constitutional provisions,
- Reject universal membership and multilateral enforcement on the
grounds that not all states are serious in pursuing the treaty's
goals,
- Refuse to concede an explicit "right to buy" to dictatorships
and terrorist-supporting states, and
- Adhere to President Reagan's cautious approach to arms control
agreements: "Trust, but verify."[7]
Finally, no matter what entry into force provisions are adopted
in the treaty negotiations, the treaty must not be binding on
states that have not signed and ratified it. If not based on these
principles, the arms trade treaty will fail to achieve its aims,
damage the national interest of the United States, and subvert
American sovereignty and the export control mechanisms established
by Congress.
Ted R.
Bromund, Ph.D., is Senior Research 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.