By Ted R. Bromund, Ph.D.
This article first appeared at the The Heritage Foundation
USA – -(Ammoland.com)- The Arms Trade Treaty (ATT), which Congress has rightly opposed, entered into force on December 24, 2014. The U.S. signed the ATT on September 25, 2013, but the [Obama] Administration has yet to transmit the treaty to the Senate.
The first Conference of States Parties (CSP) to the ATT was held in Cancun, Mexico, on August 24–27, 2015. The CSP set out the rules of procedure for future CSPs, created a treaty Secretariat, and established a funding mechanism for both the Secretariat and future CSPs.
Congress has repeatedly placed the Administration on notice that it regards the ATT as fundamentally flawed, and regularly banned the appropriation of funds to implement the ATT prior to its ratification. Congress should resolutely continue to oppose ratification of the ATT and should act to ensure that any decisions taken in Cancun do not result in the U.S. financing treaty activities.
The Issues at Stake
Condition and limit ATT funding. The Cancun CSP decided that the treaty Secretariat would be funded by assessments of States Parties on the basis of a modified U.N. scale of assessments. If the U.S. were to ratify the ATT, it would be assessed 22 percent of the Secretariat’s costs. The costs of the Secretariat’s activities related to the CSP are estimated at 30 percent of its core costs. The CSP also decided that all signatory and observer states—including the U.S.—would be assessed on a similar scale for the costs of preparing and holding future CSPs. By paying this assessment, the U.S. would contribute toward both the costs of the CSP itself (venue, translations, conference equipment, etc.) and the costs of the Secretariat in preparing for the CSP. In effect, the U.S. would be subsidizing the treaty Secretariat.
It is not unreasonable for the U.S., if it rightly continues to attend CSPs as an observer state, to meet some of the costs of the CSPs, although Congress should decide what conditions it should place on any funds it may appropriate for that purpose. However, Congress has consistently (most recently in the Consolidated Appropriations Act of 2016) banned the appropriation of funds “to implement the Arms Trade Treaty,” and the Secretariat is charged with providing “technical advice on the implementation of the Treaty.” To extend its refusal to fund treaty implementation to the international realm, Congress should make it clear in the next appropriations cycle that it will not provide any funding to the treaty Secretariat. Any costs that the U.S. pays related to attendance at a CSP should be (1) conditioned appropriately and (2) paid directly to the CSP host nation.
Ban voluntary contributions. The Cancun CSP allows nations to make voluntary contributions to “support the participation of delegations from developing countries to attend the CSP or other meetings under the Treaty.” Congress should ban voluntary contributions by the U.S. to any entity (including the U.N. Trust Fund on the ATT) or nation for any purposes related to the ATT.
Support open treaty meetings in 2016. The CSP will hold an extraordinary meeting on February 29, 2016, in Geneva, to adopt administrative arrangements and a structure for the Secretariat, and will hold a second CSP in August or September 2016. A number of preliminary meetings before the Cancun CSP were open only to nongovernmental organizations that actively campaigned for the ATT, and the Cancun CSP itself made an effort to discriminate between organizations that support the treaty and those that oppose it. In 2016, all preliminary meetings, and all meetings of the CSP itself, should be fully open to all organizations and industry groups that have demonstrated sustained interest in the ATT. The Administration and Congress should support this.
Demand opportunity to scrutinize and reject the ATT. 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.
Oppose claims that the ATT is international law. Treaty advocates are now claiming that the ATT is international law. By this, they imply that it is binding on the U.S., ignoring 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.
Reject connections between the ATT and other U.N. programs. Treaty advocates seek to incorporate the ATT into other U.N. activities explicitly designed to promote civilian gun control, including 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.
Reject the 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, and that U.S. conventional weapons export control policy does not incorporate the authority or the language of the ATT.
Resist public diplomacy pressure. The ATT has been ratified by 79 nations, with almost no support from major nations outside Europe, and all but 27 of its ratifications coming from Europe or small, impoverished islands. Many of the remaining ratifications are from equally impoverished African nations. An effort to assess national export and import control systems for ATT compliance has found that only 19 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.
Take note of failed reporting under the ATT. Supporters of the ATT had great hopes that the ATT would promote transparency in the arms trade. However, reporting under the ATT has been a farce. Of the 53 nations required to submit an initial report by December 23, 2015, only 35 nations (all but five from Europe) had publicly done so by January 12, 2016. Moreover, the CSP failed not only to adopt reporting templates, but also to require that reports be public. It is thus entirely possible that reporting under the ATT will actually roll back the limited transparency provided by the U.N. Register of Conventional Arms. Congress and the Administration should watch the reporting process as it continues and emphasize that the serious difficulties it has encountered further demonstrate that its rhetorical support far outweighs its practical value.
Improve appropriations bans. Led by Representative Mike Kelly (R–PA), with support in the Senate from Senators Jerry Moran (R–KS) and James Inhofe (R–OK), Congress has repeatedly banned funding to implement the ATT. Yet the Administration 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. Moreover, Congress should pressure the Administration to refrain from making import or export control rules that draw on the authority or language of the ATT, and should strengthen the verbiage of the appropriations ban. Finally, Congress should require that appropriations to implement the treaty be conditional on the full passage of legislation for the treaty, should it be ratified by the Senate, and should add a ban on the use of the ATT to sustain domestic prosecutions.
The Value of Congressional Leadership
In the short run, the outcome of the Cancun CSP was not good for the United States, although without the careful work of the U.S. delegation, the results could have been worse. The ATT Secretariat was placed in Geneva, the heart of the U.N.’s gun control program, and neither the rules nor the funding arrangements for the Secretariat and future CSPs are satisfactory.
In the long run, however, the picture is brighter. The ATT is rapidly becoming a European entity with no support from any of the major arms producers or exporters outside Europe. As long as the U.S. remains outside the ATT, the treaty will have no credibility as a global institution, and, in time, the basic disinterest of most of the signatories in transparency, combined with their considerable lack of governing competence, will eat away at the treaty.
The treaty itself may never disappear, but it is likely never to achieve relevance.
Congress has played a vital role in placing the ATT on this road to irrelevance. It should continue to oppose the ratification of the treaty. It should also take into account the events of 2016 and thereby help to ensure that the U.S. is not slowly pulled into compliance with the treaty and the restrictive interpretations of it that activists seek to advance.
About the Author Theodore R. Bromund, Ph.D.
—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.