December 19, 2014 | Issue Brief on
Top 11 Areas for Congressional Action on the U.N. Arms Trade Treaty in 2015
The coming year will be a crucial one for the U.N. Arms Trade Treaty (ATT) and for the defense of U.S. sovereignty against those who seek to use the ATT to constrain it. The ATT will enter into force on December 24, 2014. In late August, the first Conference of States Party (CSP) to the treaty will be held in Mexico City to establish the rules of procedure for future CSPs, the treaty Secretariat, and the financing of treaty activities.
While continuing to oppose ratification of the ATT, Congress should ensure that the U.S. resists the creation of precedents and procedures that would restrict its sovereignty. The Administration should recognize that its approach to the ATT has failed and join Congress in these actions.
The Issues at Stake
- CSP Rules of Procedure. The August CSP will adopt by consensus (i.e., by unanimity) rules of procedure that will govern all future CSPs. At a preliminary meeting in Berlin in November, most states agreed that issues of procedure would be decided by a simple majority, while issues of substance would require a two-thirds majority. These rules are not in the U.S. interest and would be a further violation of the Administration’s red line that all negotiations on the ATT should proceed by consensus. Both the Administration and Congress should oppose any departure from consensus in the CSP’s rules.
- Structure of the ATT Secretariat. Article 18 of the ATT is vague about the structure and duties of the Secretariat. The Permanent Representative of Mexico to the U.N., Jorge Lomónaco, has been quoted as saying that it can be “similar to the ones we currently have on chemical weapons.” Such a Secretariat, among other activities, would be authorized to conduct on-site inspections inside member nations, potentially including the U.S. This is unacceptable. The U.S. should oppose all but the most minimal Secretariat.
- Funding of ATT Activities. At a preliminary meeting in Mexico City in September, many nations supported a hybrid model: mandatory national contributions by all signatories with an upper and lower cap, coupled with voluntary contributions. This model would both require the U.S. to contribute 22 percent of the Secretariat’s funding, and allow the Secretariat to be heavily influenced by gifts from nations that wish to use the ATT to constrain U.S. foreign policy and domestic freedoms. As part of its rejection of the ATT, Congress should refuse to contribute any funding to the Secretariat, and the Administration should oppose allowing it to accept voluntary contributions.
- The CSP’s Closed Door. Unlike the meetings that negotiated the ATT, the preliminary meetings in Mexico City and Berlin have been open only to non-governmental organizations that actively campaign for the ATT, a fact protested in September by Senator Jerry Moran (R–KS), Senator James Inhofe (R–OK), and Representative Mike Kelly (R–PA). Both future preliminary meetings and the CSP should be open to all organizations and industries that have demonstrated a serious interest in the ATT. The Administration should issue a demarche to this effect, and Congress should support it.
- Legal Review and Transmission to Senate. The U.S. announced its intention to sign the ATT before the Administration completed its legal review of the treaty. The status of this review is unclear. The Administration should complete this review and submit it to the Senate as part of its transmittal package for the ATT so that the Senate can promptly reject the ATT. The ATT should not be allowed to linger in legal limbo, serving as a basis for executive orders and actions but not available for formal Senate and external scrutiny.
- Status as International Law. Treaty advocates are beginning to claim that once the ATT enters into force, it will be international law. By this, they imply that it will be binding on the U.S., regardless of the fact that the Senate has not ratified it. Both the Administration and Congress should formally state that the ATT is simply a treaty, that it is binding only on nations that have ratified it, that it is not customary international law, and that its entry into force has no implications for the U.S.
- Relationship with Other U.N. Activities. Treaty advocates seek to incorporate the ATT into other U.N. activities that are explicitly designed to promote civilian gun control. These activities include the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons (PoA) and the International Small Arms Control Standards (ISACS). Both the Administration and Congress should state that the PoA and the ATT are entirely separate and that the ISACS has no standing whatsoever. The U.S. should withdraw from the PoA.
- Public Diplomacy Pressure. The ATT has been ratified by 58 nations. It has almost no support from major nations outside Europe, and all but 17 of the ratifications are from Europe or small, impoverished islands. A private effort to assess national export and import control systems for ATT compliance has found that only seven nations outside Europe are willing even to provide public information about their systems. Both the Administration and Congress should emphasize that rhetorical support for the ATT vastly exceeds either the practical desire or the ability to live up to its requirements and that violations of the ATT by its signatories are already common.
- U.S. Violation of the ATT. The Administration has argued that U.S. standards exceed those in the ATT, but treaty advocates correctly argue that the U.S. decision to arm rebel forces in Syria is a violation of the ATT. This demonstrates that the advocates do seek to constrain U.S. policy and that the ATT, if the Senate ratified it, would impinge on U.S. sovereignty. Congress should congratulate the Administration for violating the ATT and call on it to recognize the implications of this violation by unsigning the ATT.
- Object and Purpose Requirement. It is commonly held that nations are required not to defeat the object and purpose of a signed but unratified treaty. The Administration has accepted this requirement in theory but has rejected it in practice. Both the Administration and Congress should recognize that actions speak louder than words and should formally state that the U.S. is not bound to uphold the ATT’s object and purpose.
- Appropriations Bans. Led by Representative Kelly, the House of Representatives has repeatedly banned funding to implement the ATT, most recently in the Consolidated and Further Continuing Appropriations Act, 2015, approved by the Senate on December 10. Yet the Administration (wrongly, in light of its action in the case of Syria) has stated explicitly that it is already implementing the ATT. The Administration should respect these appropriations bans, and Congress should respond with hearings and corrective oversight if it fails to do so.
Congress has shown commendable willingness to oppose the ATT. It should continue this opposition and thereby help to ensure that the U.S. is not slowly pulled into compliance with it as the activists desire. For its part, the Administration should recognize that, as the CSP’s closed door and the ATT’s incorporation into the PoA and ISACS illustrate, it has not won the influence on the treaty process that it believed it could obtain by engaging with the process. It should recognize that it has failed and, in light of its own actions in Syria, should move to the straightforward position of opposing the ATT.
—Ted R. Bromund, PhD, is Senior Research Fellow in Anglo–American Relations in the Margaret Thatcher Center for Freedom, of the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, at The Heritage Foundation.