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Issue Brief #3690 on Arms Control and Nonproliferation

August 2, 2012

U.S. Should Act to Stop Renewed Rush to Arms Trade Treaty

By

The U.N. negotiating conference on the Arms Trade Treaty (ATT) ended on July 27 without reaching consensus on a treaty, but the ATT is far from dead. The conference was only one step in the process.

When the U.N. General Assembly (GA) meets in September, it will have before it the report of the negotiating conference and the draft treaty text. The ATT’s proponents plan to vote it through the GA. The U.S. should act now to stop this renewed rush to adopt the ATT.

The Failure of Obama Administration Strategy

When it decided to support the negotiation of an ATT, the Obama Administration argued that a treaty negotiated on the basis of consensus would raise arms export standards around the world, would not require the U.S. to change its “gold standard” export control system, and would not infringe in any way on the Second Amendment.

But when the treaty conference met, this strategy fell apart. Many nations lacked the will or the ability to negotiate seriously. They wanted either a treaty that would legitimate their arms sales or one intended to win applause from the non-governmental organizations (NGOs) that have led the campaign for a treaty. Many nations also wanted a treaty that would affect internal transfers—i.e., gun sales inside a treaty signatory, including the U.S.—or else were not interested in working with the U.S. to craft a treaty that clearly excluded internal transfers.

These factors resulted in a conference that did not work efficiently and in the end simply ran out of time. The result of this, predictably, has been that nations and NGOs around the world have showered the U.S. with abuse for supposedly ruining the prospects of the conference. In reality, the conference was nowhere close to reaching consensus: When seven working groups on various contentious issues reported late on the afternoon of July 27, not a single one of them had resolved the issue they were charged to consider.

The best that can be said of the conference is that it did not, in the end, produce an ATT. A fundamentally flawed concept would have made an even worse treaty if rushed to completion. But the conference was nonetheless a comprehensive failure for the Administration. It has produced an avowedly unsatisfactory text with a large group of supporters that is now united around blaming the U.S. for their failure. This is the exact outcome the Administration sought to avoid when in 2009 it decided to support the ATT.

The Renewed Rush to the ATT

When the GA meets in September, the ATT will be on its agenda. In theory, the GA could simply decide that the effort to draft a treaty has failed, but it is extremely unlikely to do that. In a statement at the end of the conference, Mexico—speaking for 90 nations, including the entire European Union—stated that it was determined to secure an ATT “as soon as possible.” It is not a good sign that Mexico was chosen to deliver this statement, because Mexico has been the most enthusiastic supporter of an ATT that would apply to internal transfers.

Given this statement, the debate in the GA will likely take one of two courses. If the Obama Administration has its way, the GA will decide to renew the negotiating mandate for the treaty, which would then be the subject of a further conference in 2013. The Administration argues that this conference should be conducted on the basis of consensus, which would give the U.S.—and every other participant—veto power over the treaty.

But the GA might also decide to adopt a resolution endorsing the ATT draft text from the July conference. Ambassador Roberto Garciá Moritán, the conference president, alluded to this strategy when he stated that “we certainly are going to have a treaty in 2012.” U.N. diplomats have predicted that the treaty could be adopted by the end of the year.

Articles in the press have stated that this vote would require a two-thirds majority. But while Article 18 of the U.N. Charter does mandate a two-thirds majority vote on “important questions,” including “recommendations with respect to the maintenance of international peace and security,” it does not specifically require that treaties must be adopted by a two-thirds majority.

Among the treaties the GA has adopted are the International Covenant on Economic, Social and Cultural Rights (1966), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the U.N. Convention on the Law of the Sea (1982), the Convention on the Rights of the Child (1989), the Comprehensive Nuclear Test Ban Treaty (1996), and the Convention on the Rights of Persons with Disabilities (2006).

The U.S. has ratified none of these treaties, which comprise a left-wing wish list on social policy, arms control, and global governance. The draft ATT treaty would similarly be seriously flawed. GA resolutions are non-binding, and if the Assembly passed a resolution endorsing the ATT, it would not directly affect the U.S., particularly if the U.S. opposed the resolution. But other governments could use the treaty to cause trouble for the U.S., and NGO advocates would embark on an extended campaign outside and inside the U.S. urging the U.S. to adhere to it.

What the U.S. Should Do

  • Quit the ATT process. It should state that the July conference demonstrates that there are two groups of nations in the world: the cheerleaders, who simply want a treaty, and the insincere and the inept, who have either no real interest in a treaty or no ability to negotiate a serious one. Given this, it is not currently possible to negotiate an ATT that serves U.S. interests and respects U.S. liberties.
  • Make it clear that it will oppose with all means at its disposal any vote in the GA that would seek to adopt a resolution endorsing the current draft ATT text. The U.S. should work to mobilize support among the uncommitted—the 90 member states who support the ATT do not comprise a majority of the GA.
  • State that it will not sign or seek ratification of an ATT if it is adopted by the GA, that it will not recognize such a treaty as constituting customary international law, and that GA adoption would lead to both immediate U.S. withdrawal from other U.N. initiatives related to the ATT (including the Program of Action on Small Arms) and an announcement that the Administration would work with Congress to withhold financial contributions relevant to the ATT and related initiatives.

If the GA adopts an ATT over the explicit objection of the U.S.—after the U.S. participated in the negotiating process in good faith and even now supports continued negotiations—it will clearly demonstrate that it has no interest in a constructive relationship with the U.S. in this realm. The U.S. should recognize this and reply in kind.

A Failure of Conception

The Administration tried its strategy. It failed. The U.S. was represented at the July conference by an able team, so this was not a failure of execution; it was a failure of conception. The momentum of events is avowedly unacceptable to the Administration, and the Administration should recognize this, accept a measure of blame for it, and take immediate steps to recover from its failure.

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.

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