Published July 25, 2012
UNITED NATIONS – The arms trade treaty being hammered out by the United Nations is nearing completion, and the current draft shows it could lead to perpetual attacks on the U.S. Constitution’s Second Amendment and American foreign policy, critics say.
The document, which critics say has been framed by countries hostile to U.S. interests, allows for future amendments to be approved by just two-thirds of states showing up at an amendment conference. That means it could be agreed to by the U.S., put into effect and then changed over Washington's objections. And even if the U.S. Senate refuses to ratify it, the deal could have a huge impact on the global arms trade, where the U.S. is the biggest player.
“This alone is grounds for rejection,” said Ted Bromund, senior research fellow with the Washington-based Heritage Foundation’s Margaret Thatcher Center for Freedom, as he pored over the text.
But even without amendments, there is plenty for the U.S. not to like in the draft, say critics. The treaty could set the stage for legal challenges to U.S. aid to allies like Israel and Taiwan, and it could also expose private information about U.S. gun owners.
“We have been making clear throughout our red lines, including that we will not accept any treaty that infringes on Americans' Second Amendment rights,” said one U.S. official close to the talks, but who asked not to be identified.
But release of the draft so close to Friday’s deadline for a final text sends a strong signal that the treaty’s broad strokes are already set, observers say.
While critics say U.S. gun owners and interests would be left exposed by the draft, it has drawn criticism on other fronts. Activists on the political left say it is a gift to illicit gunrunners around the world, and the only group that seems to like it is the rogue states leading talks, say critics.
“The talks … are now being dominated by skeptical governments including Iran, Syria and Cuba, intent on having a weak treaty, or no treaty at all,” Control Arms, a global movement that says illicit gunrunning is fueling conflict, poverty and serious human rights violations worldwide, said in a statement. Other activists named North Korea, Egypt and Algeria as additional spoilers of the UN’s stated aims for the treaty: to keep conventional weapons out of the hands of rogue regimes, terrorists and criminals.
The draft treaty’s amendment provisions have become a new point of focus for campaigners keen to protect the integrity of U.S. Second Amendment rights to gun ownership and other U.S. interests.
Language stating that amendments are only legally binding on a country if “accepted” by its government is ambiguous, according to some experts. Past practice dictates acceptance is necessary if an amendment is to carry legal weight in a country, but the terms of this treaty have already veered from the norm with the UN General Assembly’s acceptance of the agreement-by-consensus provision.
The draft treaty’s amendment rules also fail to stipulate a quorum for an amendment vote.
“That could be done by just 10 states,” said Tom Mason, U.S. executive secretary of the World Forum on the Future of Sport Shooting Activities, an association of hunting, shooting and industry organizations, including the National Rifle Association.
He said the U.S. Second Amendment is protected only by sovereignty and “lawful private ownership” references in the draft’s preamble – a part of a treaty that is not typically legally binding.
He also lamented that the draft fails to specifically exempt civilian arms from its “covered items.”
Critics say these shortfalls are an invitation for gun control activists to cite the treaty in their campaigning even as the treaty’s supporters say it is clearly about international arms transfers.
Mason said even hunters and sportsmen traveling over national borders with their firearms could find themselves at odds with the treaty if the current draft stands.
“U.S. law covers this activity,” he said.
Some provisions appear that critics have said may straitjacket U.S. foreign policy, including one that could facilitate opposition to U.S. arms sales to Israel or other states involved in conflict. The provision does this by citing human rights and humanitarian law as criteria for considering halting arms sales.
But while the so-called “automatic majority” of Arab and Muslim states and their allies at the UN paint Israel as one of the world’s worst human rights abuser states, Russia and China have balked most at the human rights and humanitarian rules, insiders say.
While declining to discuss specifics of a draft “under active negotiation,” the U.S. official close to the talks said the United States seeks a treaty that “improves global security by requiring countries to establish export controls to prevent illicit transfers of arms, including to terrorists, criminals, known human rights violators, and those subject to United Nations arms embargoes.”
But the draft falls short on even those goals, according to campaigners from across the political spectrum.
“It’s hard to see what difference this treaty will make, and in fact it could make things a lot worse by legitimizing a poor standard of practice,” said Roy Isbister, team leader on Arms Transfers at Safer World.
Activists on the political left are angry ammunition is not listed as within the treaty’s scope. The United States was among countries that sought the omission as U.S. gun lobbyists and their supporters said tracking ammunition was unworkable.
The draft that emerges will become international law for countries that ratify it once 65 of them have done so. But analysts say it could take 10 years to reach that number.
At least 58 U.S. senators have pledged to not ratify the measure “if it includes civilian firearms,” Wayne LaPierre, NRA executive vice president, told the UN treaty conference this month. For a treaty to become U.S. law, two-thirds of the Senate must vote to ratify it. Still, experts told FoxNews.com that if the Obama administration signs on and the Senate does not expressly reject it, the treaty may later be enforceable in the United States as international "customary law" – absent a successful challenge based on the Constitution.
Steven Edwards is a UN-Based freelance journalist. Follow him on Twitter: @stevenmedwards