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FAS Public Interest Report
The Journal of the Federation of American Scientists
May-August 2001
Volume 54, Number 3-4
FAS Home | Download PDF | PIR Archive
Front Page
The Central Deception of National Missile Defense
If Not NMD, Then What?
Sharing Missile Defense
US Government Fails to Lead on Small Arms
US Policy and the BWC Protocol
Intelligence Oversight Faces New Obstacles
Controversy over Wen Ho Lee Persists
FAS Status Report

US Government Fails to Lead on Small Arms

By Tamar Gabelnick

At the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, held from 9-20 July in New York, the US government blew a great opportunity to mend its international image on arms control. The UN Conference was organized to develop an action plan to combat the black market trade in small arms and light weapons. Governments have become increasingly interested in this subset of the conventional arms branch which ranges from pistols to grenade launchers _ because they are the preferred tools of insurgents, organized criminals and other threats to state security and peacekeepers in the field.

The US government has been quite active in addressing the problems surrounding the spread of small arms since the issue reached the international radar screen in the mid-1990s. In addition to preparations for the UN Small Arms Conference, it signed the OAS Convention on Small Arms in 1997; pushed hard for a strong Firearms Protocol to the UN Convention against Transnational Organized Crime, finally signed in February 2001; promoted passage of one the world's only laws regulating the operations of troublesome arms brokers; began a $2 million a year program of small arms destruction in post-conflict countries; and partnered with several African nations to improve regional capacity to prevent arms smuggling.

Then Secretary of State Madeleine Albright made no fewer than four major speeches signaling her commitment to reducing small arms proliferation. Secretary of State Powell has not yet made this a priority issue, but his interest in gun-ravaged Africa should make him a natural candidate. He also responded to a House of Representatives letter requesting his attendance at the UN Conference by saying he was committed to a "successful outcome," and that the US Delegation "has forcefully advocated, and will continue to advocate, that the Conference Program of Action include strong language" on export controls.

But US government actions in New York turned it from leader to renegade on the small arms issue. Egged on by gun rights lobbyists inside and out of the official delegation (three "public" members of the official delegation had ties to the NRA), the US delegation began and ended the Conference with a hard-nosed, anti-UN, pro-gun stance. During his opening statement, Under Secretary of State John Bolton quoted John Ashcroft's interpretation of the Second Amendment, throwing in a jab at international and non-governmental organizations for good measure. He introduced several "red line" issues that the US could not accept in the Program of Action, including problems never mentioned during the three Preparatory Committee meetings. On two of these issues _ restrictions on civilian ownership of guns and a prohibition on transfers of arms to non-state actors _ the US was prepared to walk out of the Conference rather than accept anodyne compromise language suggested by the Conference Chair. Eventually, the vast majority of nations were forced to cede to US demands in order to save the Conference.

In his opening speech, Bolton did make note of strong US export controls and called on other states to "adopt similar practices." But while the US delegation apparently proposed stronger language on some export control provisions, it did not insist on these changes. Rather, it used most of its political capital to insert qualifying language on many measures and to remove calls for international financing of new initiatives.

Given that the end result of the Conference was only a politically _ not legally _ binding document, the negative quality of US leadership was surprising. With the black eye the United States has received from blocking progress on other issues of importance at the global level _ from the biological weapons protocol to the Kyoto greenhouse treaty _ the inability of the US to play a productive role on an issue it normally takes a strong stand on shows either a lack of political savvy or the indomitable influence of the gun lobby on US foreign policy-makers.

Despite an unhelpful US position, the final Conference Program of Action did move the debate on small arms proliferation forward in several other significant areas. It contains repeated references to the humanitarian impact of small arms violence, a relatively new way to frame the issue that will help enlarge the group of government agencies and NGOs involved. It calls on states to assess small arms exports based on their "responsibilities under international law," a critical phrase for NGOs

Trying to get states to integrate human rights and humanitarian law into their export decisions. It also recognizes the importance of demobilization, disarmament, and reintegration of ex-combatants; the need for international rules on the activities of arms brokers; and the responsibility of governments to keep close watch over their weapons stockpiles and international borders.

Finally, conferees agreed to hold a review conference in 2006, plus biennial meetings along the way. These meetings will allow NGOs and governments to keep the momentum moving on the small arms issue and to revisit the Program of Action formally in a short time frame.

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Address to the UN Conference on Illicit Trade in Small Arms
By Tamar Gabelnick

I am speaking today for my organization, the Federation of American Scientists, and on behalf of the US Small Arms Working Group, an alliance of non-governmental organizations and individuals working to reduce the proliferation and misuse of small arms. We stand firmly behind the idea that the Program of Action should include a call for norms and standards on the export of small arms and light weapons. And we believe that such norms should be developed at the international level.

Some delegates have challenged the pertinence of export criteria to a document focused on the illicit trade in small arms. But the connection is often short between government-authorized sales and the illicit trade. Small arms exported to states with weak border controls, poor stockpile security, or even corrupt government agents can quickly end up in the black market. Breaking the legal to illicit link therefore depends on prudent exporting decisions that take into consideration the recipient states' records on diversion, among other factors.

But I will go one step further and argue that some government-authorized sales must be considered illicit in the first instance. Just because a government grants permission for an export does not mean that it is legal under international law. The most obvious example is when a state approves weapon transfers to a state or armed group in violation of a UN arms embargo. While government-authorized, it is still illegal. Likewise, small arms exports that violate states' obligations under other international treaties - such as the Convention on Certain Conventional Weapons or the Landmines Treaty - are also obviously illegal.

Beyond these express limitations on states' freedom to transfer small arms and light weapons, there are also indirect limits on exports based on the use of the weapons. According to the International Law Commission's Draft Articles on State Responsibility, a state that aids another state to commit an international crime is internationally responsible for that action. If I were to hand a gun to someone about to commit murder, I could be considered an accomplice to that crime. And so it is with international weapons transfers.

Under current principles of international law, states have a responsibility not to authorize arms exports when there is a clear risk that the weapons would be used to commit serious violations of international humanitarian or human rights law, to engage in acts of genocide or other crimes against humanity, or to violate norms of the UN Charter. Article 1 of the Geneva Conventions on the laws of war _ which requires states to "respect and ensure respect" for its provisions _ reinforces the notion that states must not sell arms that would be used to violate the Conventions.

The norm of state responsibility for the use of its exported weapons has also been enshrined in many states' national laws and has been included in regional agreements such as the EU Code of Conduct and the OSCE Document on Small Arms. The international community must now build on the norms accepted by many of the major arms experts and agree to them at the international level.

Mr. President and distinguished delegates, my recommendation to you today is therefore to include in the Program of Action, in the section entitled "at the global level," a call to "create common norms and standards for the export of small arms and light weapons based on international humanitarian and human rights law and respect for the UN Charter." This is essential and fully relevant language that only serves to reinforce principles that states have already committed to, and should already be implementing.