BASIC RESEARCH REPORT

One Size Fits All?
Prospects for a Global Convention on
Illicit Trafficking by 2000

Chapter 3: Developing the UN Firearms Protocol

Weapons have a deleterious affect on Jamaican society, so Jamaica is keen on the strongest language possible in any international convention.
Jamaican police official⁴³

Despite the problems posed by ratification and implementation of the OAS Convention, progress on developing a legally binding international instrument to combat illicit trafficking has progressed at lightning speed. Spurred by the political will generated by the signing of the OAS Convention and the EU Programme, 1998 saw the generation of increasing support for development of an international agreement.

The UN Commission on Crime Prevention and Criminal Justice had been working on firearms issues for three years when the Seventh Session of the Economic and Social Council (ECOSOC) opened in Vienna in April 1998. At that meeting, the United Nations moved one step closer to an international convention when a diverse group of 56 states sponsored an ECOSOC resolution calling for a legally binding convention to combat illicit firearms trafficking.⁴⁴ Brazil, Canada and the United States were particularly strong advocates of the proposed resolution and managed to secure endorsements from all G-8 states.

G-8 Assumes Leadership Role
The high level of support for the ECOSOC resolution stemmed in part from the work of the G-8 Lyon Group which was established at the 1994 Halifax Summit to address firearms trafficking in the context of crime and tasked with developing policy proposals. In the course of G-8 negotiations, a strong degree of consensus emerged in favor of the ECOSOC process. In the final communiqué from the May 1998 Birmingham Summit, the G-8 stated:

We endorse the Lyon's Group principles and action plan to combat illegal manufacturing and trafficking of firearms. We welcome its agreement to work towards the elaboration of a binding international legal instrument in the context of the UN transnational organized crime convention.⁴⁵

In response to the G-8's endorsement at the summit, Jonathan Winer, then US Deputy Assistant Secretary of State for International Crime, Narcotics and Law Enforcement, declared that the system of import/export controls, weapons tracing, and weapons marking enshrined in the OAS "is now effectively in the process of being globalized."⁴⁶

Current Status
The ECOSOC resolution mandated that the UN Crime Commission establish an ad hoc committee to discuss the elaboration of an international instrument. It was agreed that the instrument would be one of three protocols attached to the UN Crime Convention. Through unofficial and formal negotiations, the ad hoc committee has been tasked with drafting a detailed final text by June 1999. It is expected that the Crime Convention itself will be signed by the year 2000.⁴⁷

The G-8 states have continued to play a leading role in accelerating progress toward agreement on a Firearms Protocol. They have laid much of the groundwork for the Firearms Protocol in the course of their own negotiations in the Lyon Group. As one UK official commented, "The G-8 are several steps ahead of the game and really kick-started negotiations in ECOSOC at the beginning of this year."⁴⁸

Pre-empting concerns that the champions of the OAS Convention would hijack the process and present the UN with a carbon copy of the regional OAS agreement, the Canadian Government submitted a preliminary draft text of a Firearms Protocol in early November 1998. Countries were invited to submit proposals and suggest language to the UN Crime Commission in preparation for the ad hoc committee's January 1999 meeting. During the first round of formal negotiations, Japan, Mexico, the United Kingdom and the United States all offered written submissions outlining proposed additions and deletions to the text. A further 35 countries, ranging from Sudan to Sweden, are also on record expressing their views regarding the draft text.

Key Principles of Draft Firearms Protocol
In practical terms, there is little to distinguish the framework of the OAS Convention from that of the draft Firearms Protocol. The current draft Firearms Protocol commits states to combat illicit manufacturing of and trafficking in firearms, ammunition and other related materials by:

• promoting common international standards for the import, export and in-transit international movements of firearms, ammunition and other related materials;

• encouraging international cooperation and information exchange at the national, regional and global levels, including through firearms identification, tracking and tracing; and

• furthering international cooperation on firearms ammunition and other related materials, in particular by developing an international regime for the management of commercial shipments.

Policy Shift or Repackaging of OAS Principles?
Following the signing of the OAS Convention, international understanding of illicit weapons trafficking has grown. According to an official involved in drafting the Firearms Protocol, in the course of developing various international initiatives on firearms, states made a concerted effort to reach consensus on certain fundamental principles that could later form the basis of a global agreement. For example:

• The Legal and Illegal Trade in Firearms are Linked. Illegal arms often originate as legally transacted goods which are later stolen or diverted. This intersection between legal and illegal transfers underlines the need for tracking and tracing and highlights the critical need for states to work together to increase the transparency of the international trade.

• Domestic and International Efforts to Regulate Firearms are Linked. No state is immune to the effects of lax legislation and administration of firearms regulation in other states.

• States Must Adopt Effective Methods of Firearms Identification and Tracing, Utilizing the Best Available Technological Means. The ability to identify a firearm greatly assists law enforcement authorities in the tracking of firearms and thus in the detection and dismantling of illegal networks.

• Increased Transparency in the International Trade is Needed. A more transparent and accountable system governing the international trade of firearms is a critical element in any effort to combat illicit firearms trafficking.⁴⁹

The aforementioned principles appear to signal a policy shift from the narrow, crime-oriented agenda of the OAS Convention to a more conflict-driven approach. If the Firearms Protocol itself reflects these agreed principles in both theory and practice, it will have a significant impact on the proliferation and misuse of light weapons across the globe. However, despite this statement of lofty principles, concerns remain that the Firearms Protocol will inherit the law enforcement limitations of the OAS agreement.

Current Areas of Controversy

Defining crime

The emergence of a law enforcement bias appears to be an issue of particular concern with regard to the scope of the draft Firearms Protocol. Although the draft text acknowledges the linkages between legal and illegal transfers and domestic and international regulations, it does not address the connections between weapons used in violent crime and those used in armed conflict.

In the course of talks, there was considerable debate over whether the Firearms Protocol should cover all illicit trafficking or only that portion of trafficking related to transnational organized crime. A Canadian official centrally involved in the development of both the OAS Convention and the Firearms Protocol has argued that the scope of these efforts has been clear from the start, commenting that, "The focus of this protocol is crime. It is a protocol to a crime convention: the Convention against Transnational Organized Crime." ⁵⁰

However, though the term "transnational organized crime" conjures up images of mafias and drug cartels, the draft Crime Convention broadly defines an "organized criminal group" as a "structured group of three of more persons existing for a period of time and having the aim of committing a serious crime in order to, directly or indirectly, obtain a financial or other material benefit."⁵¹ Theoretically, the Crime Convention has the potential to address any criminal activity, whether conducted in the context of a violent crime or an armed conflict.

Although cooperation is still seen as the UN Firearms Protocol's "raison d'ˆtre," the scope for such cooperation has yet to be determined.⁵² There is evidence that certain governments would prefer to limit cooperation to address only trafficking activities carried out by criminals, thereby effectively closing the door to a more in-depth exploration according to a broader definition of illegal transfers. For example, the French delegation has argued that, "Cooperation should not go beyond combating transnational organized crime into the area of disarmament and arms control."⁵³

However, a diverse range of government representatives support the idea that this global Firearms Protocol presents an opportunity to address light weapons trafficking in a wider context. For example, Colombia proposed alternative language to the opening paragraphs of the text in order to acknowledge the linkages between crime and conflict. Specifically, Colombia proposed the addition of a clause stating that illicit trafficking has "destabilizing effects closely linked to other transnational criminal activities, the high levels of crime and violence in many cities and communities, and the incidence of interstate conflict."⁵⁴

South Africa also widened the debate by proposing the addition of a clause "stressing the need in peace processes and post conflict societies, to achieve effective control of firearms, ammunition and other related materials in order to prevent their entry into the illicit market."⁵⁵ These additions reflect regional priorities where the link between illicit flows of weapons in armed conflict and violent crime are a daily reality.

Scope

A clear shortfall of the OAS Convention is its restriction to commercial transactions. More than any other aspect of the agreement, this limitation calls into question the motivations of its advocates. Taking the same route, the draft Firearms Protocol fails to apply its controls to government transfers - whether to other states or to non-state actors - which are also commercially lucrative and can involve private companies. Thus the agreement conveniently shifts the focus away from governmental exports, despite the fact that logic dictates that any and all transfers should be subject to the same standards of transparency and accountability. Belgium raised the concern that this principle "might run the risk of violating the Geneva Convention on the rules of conflict."⁵⁶ This then raises the question of the Firearms Protocol's potential effects on the right to self-defense, an issue that is explored in greater detail in the section below. It also underlines the importance of agreeing definitions in line with international law.

Theft, loss and diversion from government stocks are key sources of illicit weapons, especially in regions of tension. Yet despite this concern, the US delegation, with support from Croatia and Ecuador, proposed that the Firearms Protocol be applied to "all classes of commercially traded and manufactured firearms, ammunitions and other related materials.but not to State-to-State transaction or transfers for the purposes of national security."⁵⁷

The South African delegation proposed deleting the words "commercially traded," arguing that this unnecessarily limits the scope of the Firearms Protocol and could create loopholes that traffickers could exploit.⁵⁸ The Colombian delegation went even further, proposing that the exemptions for both state-to-state transactions and transfers for the purposes of national security be eliminated.⁵⁹

Although delegations from Algeria, France, Germany and the Netherlands expressed concerns that the scope of the Firearms Protocol should not extend to matters outside the UN General Assembly mandate for the Crime Convention, many countries voiced support for a wider scope for the Firearms Protocol. For example, Mexico, Turkey and the Republic of Korea pointed out that limiting efforts to controlling trafficking related to organized crime would pose technical difficulties. In addition, the United Kingdom and the United States supported the idea that certain provisions of the Firearms Protocol should extend beyond the scope of organized crime.⁶⁰

Right to Self-Determination
In many countries, the functional relationships between violent crime and armed conflict as well as legal and illegal firearms transfers are increasingly blurred. Because the Firearms Protocol seeks to address the lack of domestic and international controls on these transfers, there have been some inevitable areas of controversy. Particular confusion arises from the need to distinguish the rights of an oppressed people to self-determination from the domestic gun lobby's defense of the right of ordinary citizens in a democratic state to possess non-military firearms for sporting, hunting or personal safety purposes.

If a distinction is drawn between government transfers and commercial transactions, the Firearms Protocol could confer a dangerous and unjust special status on transfers carried out by states and endanger the right to self-determination. Observers argue that, according to this formulation, groups attempting to overcome repressive regimes would face increased controls, thereby limiting their acquisition of weapons. Meanwhile autocratic and abusive governments would continue to receive "authorized" weapons transfers, even in cases where these weapons are likely to be used to commit serious crimes as defined by human rights and humanitarian law. Some groups might be looked upon favorably by arms producing governments and would continue to receive covert weapons supplies. However, the Firearms Protocol would harshly penalize other groups, such as the Kurds in Turkey, which are defined as terrorist organizations.

In an interesting development, the delegation of Pakistan proposed that the following clause should be added to the text of the Firearms Protocol in response to these concerns:

The provisions of this Protocol shall not be construed or applied either directly or indirectly to undermine the inalienable right to self-determination of peoples struggling against colonial or other forms of alien domination and foreign occupation, a right, that is enshrined in the Charter of the United Nations and in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations.⁶¹

The proposal reflects a position long-held by the Non-Aligned Movement. In addition, it has already been set out in the May 1996 UN Guidelines on Illicit Trafficking and is in line with international law. Formal inclusion of this clause within the text would represent an important acknowledgement of agreed international standards.

However, the concept of the right to self-determination as defined in international law has been perverted and misused by advocates of loose controls on domestic possession and use of firearms by ordinary citizens. The gun lobby appears to be clouding the issue of the right to self-determination by equating it with the right to bear arms, likely hoping to advance its own cause at home. Reporting on the first round of negotiations on the Firearms Protocol, one Canadian gun lobby advocate wrote that, "despite the noted constituency pushing for stricter harmonization of individual state and global gun control laws, there are several countries just as adamant to preserve their rights of self-determination. Mediterranean rim countries are particularly concerned with this principal and expressed their objections to overly restrictive globally induced controls. The concerns centered on the need for citizens to have the capability to defend themselves from surprise invasions from rebel groups."⁶² While governments are trying to grapple with the serious task of determining when it acceptable for non-state groups to receive weapons, such statements indicate that the gun lobby is trying to manipulating the issue to its advantage.

It must be made clear that the rights of repressed peoples who are systematically abused by undemocratic or repressive regimes are quite distinct from the rights of those who are well-protected by the rule of law and the democratic process. While it is difficult to develop definitions for such distinctions, governments must address these challenges if the Firearms Protocol is to achieve its objectives. Governments could consider using principles outlined in existing documents as a starting point for this exercise.⁶³ Regardless of one's position on the issue of the right to bear arms, it is clear that the concerns and rights of a citizen facing tyranny and violence in East Timor are very different from those of a sportsman in the rural United States.

Illicit Trafficking
In a similar vein, the definition of illicit trafficking has emerged as an extremely problematic issue. The Canadian proposal defines illicit trafficking as an international transaction not authorized by either one or both State Parties. However, the delegations from Pakistan, Qatar, Sudan and Syria expressed concerns that this formulation may violate the principles enshrined in the UN Charter with respect to equal rights, self-determination and the right to self-defense.⁶⁴

One solution to this controversy would be to draft the Firearms Protocol using the already agreed UN definition of illicit trafficking as "that international trade in conventional arms, which is contrary to the laws of States and/or international law."⁶⁵ This definition would address countries' concerns about upholding the UN Charter. This broader interpretation would also have an effect on the overall scope of the Firearms Protocol, thereby providing an avenue for greater scrutiny of certain government-to- government weapons transfers. (The proposal to broaden the definition of illicit trafficking to include weapons transferred in contravention of humanitarian law is discussed at greater length in the recommendations section on pp. 29-30.)

Firearms and Explosives
Prior to the circulation of the draft Firearms Protocol, there was a concern that the problems posed by implementation and ratification of the OAS Convention would force governments to narrow the definition of firearms in the Firearms Protocol. A more restricted definition would exclude many categories of small arms and light weapons frequently trafficked in regions of conflict, thereby limiting the application of the Firearms Protocol in regions of tension or post conflict reconstruction.

Consensus has not yet developed with regard to a precise delineation of the weapons to be controlled by the Firearms Protocol. However, according to one official close to the negotiations, "The definition of firearms will cover everything from a gun you put on a tank right down to a .22 pistol."⁶⁶ The only expected exemptions are antique firearms and airguns. Draft text submitted by Canada also proposes excluding missiles and land mines.

Mexico and the United States proposed the re-insertion of clause derived from the OAS Convention which would expand the firearms definition to include "Any other weapon or destructive device such as an explosive, incendiary or gas bomb, grenade, rocket, rocker launcher, missile, missile system, or mine."⁶⁷ The delegations from Belgium, Egypt, Italy, New Zealand, South Africa, Turkey and Zambia also voiced support for this proposal. Observing that criminal elements transfer and use these weapons, they declared that "limiting the application of the Protocol would lower the practicality and effectiveness of the Protocol as an instrument to combat transnational organized crime."⁶⁸

Belgium also raised the idea of including a "safeguard clause" to prevent grave breaches of international humanitarian law; governments should discuss this proposal in detail during the next round of negotiations.

Mexico is virtually a lone voice calling for inclusion of explosives in the Firearms Protocol. Although the OAS Convention gave explosives the same priority as firearms and ammunition, the current draft Firearms Protocol does not apply to explosives. Both Canada and the United States are arguing against the inclusion of explosives, citing the difficulties faced by the OAS in developing precise definitions.⁶⁹ It appears that they have also convinced the rest of the G-8 states to support their position. To justify their opposition, the G-8 argue that the April 1998 ECOSOC resolution called for further study of explosives but did not explicitly including them in the mandate. They maintain that if after further study controls on explosives are shown to be viable, they can be attached as a separate protocol to the Crime Convention.

There is a possibility that Latin American countries who backed the inclusion of explosives in the OAS Convention could join forces with the Non-Aligned Movement states (known as the Group of 77) in an effort to push for inclusion of explosives in the Firearms Protocol.

Go to Chapter 3 (continued)

Executive Summary | Chapter 1 | Chapter 2 | Chapter 3
Chapter 4 | Conclusion | Endnotes

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