June 4, 2012 | Issue Brief on International Law
The U.N. Arms Trade Treaty (ATT) will be negotiated in July in New York. One reason to be concerned about the ATT is the risks it poses to U.S. sovereignty. Some of these risks are specific to the ATT, but the fundamental problem is that the ATT is an aspirational treaty and, as such, will impose constraints on the U.S. that will not in practice affect the dictatorial regimes at which the treaty is nominally aimed.
The ATT’s Stance on Sovereignty
Because the ATT is yet to be negotiated, its text is not likely to be public until it is concluded on July 27, but in the context of sovereignty, two of its principles are reasonably clear. First, the treaty will likely assert that all U.N. member states have the inherent right of self-defense, including the right to buy, sell, and transfer arms. Second, it will likely be based primarily on national implementation, not enforcement by a U.N. organization.
The Dilemma Inherent in an Aspirational Treaty
When applied to the world’s democracies, these principles are reasonable. However, the ATT’s proponents want it to be a universal treaty—i.e., one that is negotiated and signed by all U.N. member states. Many of these states are dictatorships. Thus, the treaty will on the one hand recognize that states such as Syria have the right to buy and sell arms and on the other hand require them to establish effective systems of import and export control that, like the current U.S. system, consider the human rights consequences of arms transfers.
This is a fantasy: If a state like Syria genuinely wanted to establish such a system, the treaty would not be necessary. The treaty is thus aspirational. All treaties impose limits on U.S. freedom of action. If the benefits of a treaty are mutual, it can make sense for the U.S. to accept these restrictions, for the same reason that businesses find benefit in signing binding contracts. But the ATT will effectively bind only the democracies that accept it.
The failure of other states to live up to their commitments under the ATT will not cause its restrictions on the U.S. to lapse. In a world of states that do not respect human rights, a universal treaty based on the vague and wide-ranging human rights criteria that the ATT will seek to apply to arms transfers will always apply with more force to the law-abiding than it does to the lawless. It will always be used by the naïve and the evil to apply the powerful weapon of shame against those with a deeply ingrained respect for the rule of law.
The ATT will pretend to regulate the international arms trade, but it will have more in common with the U.N.’s aspirational treaties on human rights, which repressive regimes use to deflect attention from their misdeeds by pointing to supposed U.S. and Israeli violations.
Specific Concerns Raised by the ATT
In addition to the fundamental problem posed for U.S. sovereignty by the rise of aspirational treaties (of which the ATT is only one example), the treaty raises a number of specific concerns:
What the U.S. Should Do
In the context of the Second Amendment, Senator Jerry Moran (R–KS) has introduced the Second Amendment Sovereignty Act of 2012 (S. 2205) and has followed up with Senator Jon Tester (D–MT) with a similar amendment to the FY 2013 State, Foreign Operations, and Related Programs Appropriation Bill. Either would prohibit the U.S. from expending funds to negotiate an ATT that would “restrict in any way the rights of United States citizens…[or] otherwise regulate domestic manufacture, assembly, use, transfer, or purchase of firearms, ammunition, or related items.”
This is a valuable starting point, but because the text of the treaty will not be available until it is final, no prohibition of this sort can be fully effective. Any ATT should explicitly recognize the legitimacy of hunting, sport shooting, the right of personal self-defense, and other lawful activities related to the private ownership of firearms.
More broadly, Americans should realize that many of the risks to U.S. sovereignty posed by the ATT and other aspirational treaties cannot be fully addressed by legislative action, because these risks are inherent in any effort to negotiate vague, aspirational, and universal treaties in a world full of dictatorial states. The best defense against encroachments on U.S. sovereignty—including the ability to conduct foreign policy—rests with oversight by elected officials and the vigilance of American citizens.
Ted R. Bromund, PhD, 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.
See Harold Koh, “A World Drowning in Guns,” Fordham Law Review, Vol. 71, No. 6 (2003), http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=3906&context=flr (accessed May 30, 2012).
For a review of some relevant concerns, see Ted R. Bromund, “Why the U.S. Should Be Concerned About the Domestic Effects of the U.N. Arms Trade Treaty,” Heritage Foundation WebMemo No. 3430, December 13, 2011, http://www.heritage.org/Research/Reports/2011/12/Effects-of-the-UN-Arms-Trade-Treaty-on-the-US.