Poor Reasons to Oppose a Treaty
Primitive opposition to the recently signed arms trade treaty surfaced again last week, in the form of a letter signed by fifty U.S. senators led by James Inhofe of Oklahoma, Jim Moran of Kansas, and Joe Manchin of West Virginia. As with any time a group of American politicians says anything having to do with firearms, the Second Amendment gets invoked. But the treaty has nothing whatever to do with the Second Amendment or rights contained within it. The treaty not only has no effect on well-regulated militias but also no effect on gun ownership by individual Americans.
The treaty's stated purpose is to establish “the highest possible common international standards” for regulating the international trade in conventional arms and to combat the illicit trade in such arms, thereby contributing to the further goals of “international and regional peace, security and stability,” “reducing human suffering,” and promoting “cooperation, transparency, and responsible action” by the parties to the treaty. In short, it has to do above all with curbing the flow of munitions across international borders and into the hands of the likes of Joseph Kony or Charles Taylor. But the political subtext in the United States evidently is that the gun lobby gets nervous whenever “arms” and any conjugation of “regulate” appear in the same document (even though that is true of the Second Amendment itself).
Actually, there is one place where the treaty could be said to get into Second Amendment matters. Right up front in the preamble, the treaty reaffirms “the sovereign right of any State to regulate and control conventional arms exclusively within its territory, pursuant to its own legal or constitutional system.” One would think this reassurance would be enough, but the objecting senators complain that this is only a “weak, non-binding reference” rather than a recognition of “fundamental individual rights.” So the senators would be more comfortable with having an international treaty determine what are the fundamental individual rights of Americans, rather than leaving it to America's own legal and constitutional system to do that? They had better be careful what they wish for.
The senatorial letter has some other comparably misdirected complaints. The letter notes, for example, that it is possible for the treaty to be amended by three-quarters of the parties if complete consensus for amendment is not achieved. But the letter does not mention that no amendment shall apply to a state until and unless it explicitly accepts the amendment, and that as with most international conventions there is provision for a state to withdraw from the treaty altogether.
Something else in the letter of opposition is noteworthy because it actually involves foreign policy and the transfer of arms across international boundaries, rather than spurious threats to domestic rights. The letter says that the treaty “includes language that could hinder the United States from fulfilling its strategic, legal and moral commitments to provide arms to key allies such as the Republic of China (Taiwan) and the State of Israel.”
A report in the Times of Israel identifies the language in question as a prohibition on exporting arms if the exporting state “has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a Party.” The treaty goes on to require exporting states to assess whether a prospective export of arms would “undermine peace and security” or could be used to commit or facilitate a “serious violation” of international humanitarian or human rights law or international conventions on terrorism and transnational organized crime, and that if it determines there is an “overriding risk” of any such consequences it should not authorize the export.
This raises two questions for the letter-writers. First, exactly what exported arms do they have in mind that would be used for war crimes or breaches of the Geneva Conventions or in the United States's own judgment would lead to violations of human rights law or any of the other listed offenses? Second, why would it be in U.S. interests to export arms that would have such consequences?