The UN and a small arms program of action: measuring success

prrojjectt plloughsharres briefing #02-1 The UN and a small arms program of action: measuring success Ernie Regehr Director, Project Ploughshares 2002 The UN Conference on The Illicit Trade In Small Arms and Light Weapons In All Its Aspects held in New York in July 2002, focussed international attention on small arms issues, and resulted in the Programme of Action, which holds the promise of being translated into a genuine political will to act. What follows is a summary of the results of the conference, and an overview of the challenges now faced by NGOs seeking the implementation of the Programme of Action. Going into the conference, there were major divisions among states. Sub-Saharan African states were looking for concrete measures to stem the small arms flows that exacerbate political and social conflict and undermine basic human security throughout their region. A broad range of northern countries, including Canada and the European Union, were pressing for specific commitments for more effective controls on legal transfers as an aid to combatting illicit trafficking. At the same time, the United States stood firm in its opposition to any action that would, in the opening statement by John R. Bolton, Under-Secretary of State for Arms Control and International Security Affairs of the United States, constrain legal trade and legal manufacturing of small arms and light weapons. He said the US would oppose measures that prohibit civilian possession of small arms, regarding the issue itself to be outside the mandate for the Conference. Similarly, China and many of the Arab states wanted the Conference to confine itself strictly to the illegal trade in small arms. They rejected the insistence of others that the reference to the illicit trade in all its aspects required states to address the wide range of issues and conditions, including inadequate legal controls on these weapons, that are factors in the illicit proliferation of small arms and light weapons (SALW). In that mixed political context, nongovernmental organizations looking for concrete measures to control and reduce the availability of SALW for the most part identified four minimum requirements for a successful conference: 1) that it build international political will and momentum in support of serious attention to the small arms problem; 2) that it produce a Program of Action with at least some significant and specific commitments to act; 3) that it commit new resources for small arms 1

action; and 4) that it put in place a follow-up mechanism to hold the international community to account for the extent to which its promises are implemented. On all of those levels the Conference must be judged a basic, if not spectacular, success. Even before a final document [A/Conf.192/15] was approved in a tense overtime session, the conference had been effective, especially through the efforts of NGOs, in promoting attention to the small arms problem and in mobilizing political will in response. States also committed themselves to follow-up meetings and conferences to review the progress made in addressing the small arms problem. The level of the financial commitment to small arms action in the post-conference environment will become clear only over time. The Conference clearly acknowledged (I.2 Section I. Para 2 of Programme of Action, A/Conf.192/15) that the illicit spread of SALW has a wide range of humanitarian and socioeconomic consequences and poses a serious threat to peace, reconciliation, safety, security, stability and sustainable development at the individual, local, national, regional and international levels. States recognized (I.5) that the illicit trade in SALW in all its aspects sustains conflicts, exacerbates violence, contributes to the displacement of civilians, undermines respect for international humanitarian law, impedes the provision of humanitarian assistance to victims of armed conflict and fuels crime and terrorism. And they expressed concern (I.6) over the devastating consequences for children, as well as the negative impact on women and the elderly. But such acknowledgements and declarations obviously aren t enough. Any effective action plan on small arms and light weapons must involve commitments to act in three basic categories of measures: 1) increasing controls over access to and availability of small arms and light weapons; 2) reducing demand for such weapons; and 3) improving compliance with and implementation of proposed measures. 1 The Programme of Action (PoA) that was finally adopted did make commitments in each of these areas not as detailed and unequivocal as NGOs sought, but commitments nevertheless. The following reviews the actions promised in each of these categories. 1. Increasing control Regulating civilian access One of the more controversial and disappointing outcomes of the conference was the failure of States to explicitly commit to more effective regulation of civilian possession and use of SALW. An earlier version of the Draft PoA, debated at the March 2001 Preparatory session (L.4/Rev.1) included the commitment to put in place adequate laws, regulations and administrative procedures to exercise effective control over the legal manufacture, stockpiling, transfer and possession [emphasis added] of SALW within their jurisdiction. In the draft considered at the conference itself, the reference to possession was dropped. While a number of states regarded action on civilian controls to be outside the scope of the conference s mandate to address illicit trafficking, the United States attracted wide attention for what many took to be its obeisance to the ever-present National Rifle Association in flatly refusing any reference to domestic gun control and ultimately refusing to support even a modest paragraph calling on states to seriously consider legal restrictions on ownership of SALW (L.5, II.22). Some of the media coverage implied that the Programme of Action therefore avoids all reference to gun control, but, in fact, some surprisingly direct commitments to legally binding regulation of civilian possession of small arms were included. In the second paragraph of the operative Section of the final document (II.3), for example, all participating states, including the US, undertake to adopt and implement the legislative or other measures required to establish as criminal offences under their domestic law the illegal manufacture, possession [emphasis added], stockpiling and trade of SALW within their areas of jurisdiction, in order to ensure that those engaged in such activities can be prosecuted under appropriate national penal codes. While the paragraph does 2

not prescribe how domestic law is to regulate possession, it goes beyond seriously considering and actually requires that possession be subject to domestic law and that violation of such law be made a criminal offence. States also undertake (II.6) to identify groups and individuals engaged in the illegal manufacture, trade, stockpiling, transfer, possession [emphasis added] of illicit SALW, and then pledge to take action under appropriate national law [emphasis added], against such groups and individuals. This paragraph is much stronger than the one the US rejected. It refers to the illegal possession of small arms by individuals, and thus establishes the requirement for domestic laws to regulate possession by individuals and to distinguish between legal and illegal possession (so that individuals in illegal possession of such arms can be identified and prosecuted, as the paragraph requires). The paragraph commits participating states to take action, under their national gun control laws, against those individuals and groups in illegal possession of small arms thus assuming, to repeat the point, the necessity and legitimacy of domestic laws regulating possession. The PoA also declares (II.7) that henceforth all manufacturers must mark all weapons they build (to identify the country of manufacture, the manufacturer, and serial number, and to enable effective tracing of individual weapons), and then it commits States (II.8) to adopt all the necessary measures to prevent the possession of any unmarked or inadequately marked SALW. Hence, implementation of the PoA, to which the US is a party, not only requires domestic gun control, it also begins to prescribe the content of that control in this case putting forward a global norm to prohibit the possession of unmarked weapons. States also undertake (II.9) to ensure that comprehensive and accurate records are kept for as long as possible on the manufacture, holding [emphasis added] and transfer of SALW within their jurisdiction. These records should be organized and maintained in such a way as to ensure that accurate information can be promptly retrieved and collated by competent national authorities. Notably, there is no reference to this undertaking applying only to state holdings. For the US, or any other state, to carry out the commitment made in signing on to the PoA it will have to put in place a system of comprehensive and accurate records of all SALW within its jurisdiction to enable prompt retrieval and collation. The implication is a gun registration system that maintains records to allow national authorities to maintain retrievable and collatable records of all SALW held within their jurisdiction those privately held as well as those publicly held. Regulating state access Not surprisingly, the states that insisted the conference confine its focus to illegal arms trafficking were keen to avoid all references to regulating, never mind limiting, legal trade between states. China was particularly adamant on that point, while the United States, on the other hand, favoured proposals calling for effective export and import controls (challenging other states to establish export control systems similar to that maintained by the US) and restraint in trade to regions of conflict address. In the end, the PoA did issue a general call on all states to put in place adequate laws to exercise effective control over the export, import, transit or retransfer of SALW (II.2), and then called on states to make violations of those laws a criminal offence (II.3). Efforts by the EU and Canada in particular to include examples of specific export criteria were not successful, 2 but the PoA does include what many NGOs regard as an important breakthrough in the direction of establishing international norms and standards on arms transfers. The PoA commits States (II.11) to assess applications for export authorizations according to strict national regulations and procedures that cover all SALW and are consistent with States existing responsibilities under international law [emphasis added] taking into account in particular the risk of diversion of these weapons into the illegal trade. The paragraph must be regarded as a breakthrough in the sense that it asserts the relevance of international norms and standards (not just national interests) in restricting international 3

transfers. While China and others made sure that nothing in the document could be construed as promoting universal standards that would undermine the prerogative of states to establish their own export policies, this paragraph goes some distance in acknowledging that export regulations must after all conform to universal obligations and cannot be left to the exclusive discretion of individual states. Because this measure begs the question of just what those existing responsibilities under international law are, it is of special interest to NGOs promoting the idea of a framework convention (see page 2 for a more detailed account of the framework and the campaign that involves Project Ploughshares with a number of international NGOs) on arms transfers which seeks to clarify and codify existing obligations under international law. According to the proposed framework, such obligations at a minimum include respect for human rights and international humanitarian law and the obligation not to provide arms to states in which there is a reasonable chance that they will be used in the violation of human rights and humanitarian law. The paragraph goes on to commit states to establish or maintain an effective national system of export and import licensing or authorization, as well as measures on international transit, for the transfer of all small arms and light weapons, with a view to combatting the illicit trade in SALW. Other related measures include recommitments to comply with UN arms embargoes and to implement effective end-use and re-transfer controls. environments are essential to effective small arms control and the PoA makes significant commitments to develop and implement effective disarmament, demobilization and reintegration programmes, including the effective collection, control, storage and destruction of SALW, particularly in postconflict situations, unless another form of disposition or use has been duly authorized, and such weapons have been marked and the alternate form of disposition or use has been recorded (II.21). It also calls for such commitments to be specified in peace agreements. 2. Reducing demand States were generally reluctant to elaborate demand reduction commitments, partly because relevant measures tend to get articulated in vague but ambitious terms, like development, or democratization, or the peaceful resolution of conflict. Even so, there is wide agreement that efforts to inhibit the illicit trafficking and use of SALW meet little success in environments in which there is a high demand for arms. So demand reduction is critically important, but there has to date been little success in formulating concrete policies and measures. Adverse social, political, and economic conditions foster violence and illicit gun use, and thus illicit trading in them, and it ought to be especially clear that efforts to control small arms proliferation and illicit use will be unsuccessful as long as demand-generating conditions remain deeply rooted in troubled and underdeveloped communities. For that reason, the little attention that the PoA does pay to demand reduction is welcome. The PoA also expresses grave concern about the excessive accumulation and uncontrolled spread in many regions of the world, especially in post-conflict situations (I.21.c). States commit themselves to reviewing and identifying arms holdings that are surplus and to destroying or otherwise disposing of them (II.19). The destruction of surplus stocks and the collection of weapons in post-conflict Development States, for example, expressed concern at the implications that poverty and underdevelopment may have for the illicit trade in SALW (I.3), suggesting, even if rather hesitatingly, that poverty and underdevelopment could exacerbate the illicit trade or, put another way, the demand for SALW generated as the result of poverty and underdevelopment could add to the illicit trade. They also recognized that the 4

SALW challenge is multi-faceted and involves, among other factors listed, conflict prevention and resolution and development dimensions (I.15). In particular reference to post-conflict situations, the PoA says that States should, as appropriate, make greater efforts to address problems related to human and sustainable development, taking into account existing and future social and development activities and should fully respect the rights of the States concerned to establish priorities in their development programmes (III.17). Culture of peace Similarly, the PoA links the SALW problem to cultures of conflict and violence; states thus expressed determination to reduce the human suffering caused by the illicit trade in SALW in all its aspects, through the promotion of a culture of peace (I.4). At the global level states undertake to promote a dialogue and a culture of peace by encouraging, as appropriate, education and public awareness programmes on the problems of the illicit trade in SALW, involving all sectors of the society (II.41). Concrete action in support of such generalized intentions will depend substantially on the extent to which civil society becomes engaged in carrying out those education and public awareness programs. Peaceful resolution of conflict A related and obviously essential requirement is effective conflict prevention and the peaceful resolution of social and political conflicts. The PoA recognizes these requirements and calls on the international community to assist in the pursuit of negotiated solutions to conflicts wherever possible, including by addressing their root causes (III.4). The predilection toward military responses to conflict is one of the primary means of accelerating the diffusion of SALW globally, creating extraordinary social problems and public hazards. As the world now realizes more acutely, Afghanistan is a prime example of this process. The decades-long infusion of SALW, including landmines, into Afghanistan is also one of the main obstacles to subsequent efforts to manage the peaceful pursuit of political change. Reform of the security sector To have durable control of and reduction in demand for SALW there must exist public security institutions which retain the confidence and loyalty of the people and communities affected. For security forces to have the trust of vulnerable populations they must, as research and expert analysis have made clear, be open and accountable to the communities they are intended to serve. Accountability involves adherence to international standards of human rights and humanitarian law. Furthermore, any political environment in which public institutions are transparently committed to the pursuit of human security and the protection and safety of people is much less likely to generate unmanageable violence and demand for small arms and light weapons. The PoA only minimally acknowledges this requirement but does call for assistance in building effective law enforcement capacity (III.7). 3. Improving compliance/implementation Effective attention to the SALW problem requires the development of effective norms and laws to regulate and control access and use of SALW, as well as appropriate social, economic, and cultural values and conditions to reduce the demand for weapons. But reduced access and reduced demand for SALW both depend on effective compliance measures and practices. The PoA is strongest in defining compliance provisions. National/regional/global focal points Central among these are the recommendation that states create national agencies or focal points through which to coordinate national SALW control measures, and through which cooperation with other states can be effectively coordinated. The PoA includes a specific commitment from participating states to undertake to establish, or designate as appropriate, national coordination agencies or bodies and institutional infrastructure responsible for policy guidance, research and monitoring of efforts to prevent, combat and eradicate the illicit trade in SALW in all its aspects. This should include aspects of the illicit manufacture, control, trafficking, circulation, 5

brokering, trade, as well as tracing, finance, collection, and destruction of SALW (II.4), and to ensure implementation of the Programme of Action (II.5). In addition the PoA commits states to establish or designate, as appropriate, a point of contact within sub-regional and regional organizations to act as liaison on matters relating to the implementation of the Programme of Action (II.27). licensing or authorization of brokering transactions as well as the appropriate penalties for all illicit brokering activities performed within the State s jurisdiction and control (II.14), but the specific action recommendation was disappointing, committing states only to consider further steps to enhance international cooperation in preventing, combatting and eradicating illicit brokering in SALW (IV.1.d). Regional harmonization of laws/moratoria In addition to the commitment to establish regional SALW agencies, the PoA commits states, at the regional level, to the pursuit of regional SALW agreements. Thus states are committed to encourage negotiations, where appropriate, with the aim of concluding relevant legally binding instruments aimed at preventing, combatting and eradicating the illicit trade in SALW in all its aspects, and where they do exist to ratify and fully implement them (II.25). The harmonization of laws through regional and sub-regional action on illicit trade in SALW in all its aspects is proposed in support of the implementation and strengthening of relevant laws, regulations and administrative procedures (II.28). Of particular interest is the encouragement of the development and strengthening of regional cooperation in limiting weapons flows into vulnerable regions. Thus states agreed to encourage the strengthening and establishing, where appropriate and as agreed by the states concerned, of moratoria or similar initiatives in affected regions or sub-regions on the transfer and manufacture of SALW, and/or regional action programmes to prevent, combat and eradicate the illicit trade in SALW in all its aspects, and to respect such moratoria, similar initiatives, and/or action programmes and cooperate with the States concerned in the implementation thereof, including through technical assistance and other measures (II.26). Brokering The conference acknowledged the negative role of weapons brokers and called for adequate national legislation or administrative procedures to regulate their activities, including measures such as registration of brokers, Marking, tracing, record-keeping The PoA makes extensive reference to the need to ensure that henceforth licensed manufacturers apply an appropriate and reliable marking on each SALW as an integral part of the production process. This marking should be unique and should identify the country of manufacture and also provide information that enables the national authorities of that country to identify the manufacturer and serial number, so that the authorities concerned can identify and trace each weapon (II.7). They undertake to adopt measures to prevent the manufacture, stockpiling, transfer and possession of any unmarked or inadequately marked SALW (II.8), and to ensure that comprehensive, accurate, and traceable records are kept (II.9). International cooperation and assistance are promised, and it is specifically recommended to the UN General Assembly that a United Nations study be undertaken for examining the feasibility of developing an international instrument to enable States to identify and trace in a timely and reliable manner illicit SALW (IV.1.c). Extensive additional measures are also promised, including more effective stockpile management to prevent leakage from military and police arsenals into the general population, as well as measures for enhanced transparency regarding national laws, regulations and procedures that impact on the prevention, combatting and eradicating of the illicit trade in SALW in all its aspects (II.23). Also relevant to transparency is the general commitment to research: States, regional and sub-regional and international organizations, research centres, health and medical institutions, the United Nations system, international financial institutions and civil society are urged, as appropriate, to develop and support action- 6

oriented research aimed at facilitating greater awareness and better understanding of the nature and scope of the problems associated with the illicit trade in SALW in all its aspects (III.18). 4. Assistance and follow-up As the pre-conference Ploughshares Working Paper put it, the effectiveness of any Program of Action to emerge from this UN process, however ambitious or weak, cannot be separated from the level of resources that the international community is prepared to devote to its implementation (Regehr 2001, p. 11). In other words, if new money is not found there will be no new action. Financial and technical assistance The PoA stresses the urgent necessity for international cooperation and assistance, including financial and technical assistance (I.14), and some states, like the United Kingdom, have made formal funding commitments. There is a general commitment to broad cooperation (III.2) and capacity building in relevant areas, including the development of appropriate legislation and regulation, law enforcement, tracing and marking, stockpile management and security, destruction of SALW and the collection and exchange of information (III.6). Follow-up/Review meetings NGOs were prominent in their call for an effective follow-up mechanism, arguing that this first UN conference on small arms was only a beginning that needs to be built upon. States did commit to biennial meetings of states to consider the implementation of the Programme of Action, and to a Conference no later than 2006 to review progress on implementation of PoA (IV.1.a). Conclusion The hopes for the conference were fourfold: to build international political will and momentum on the SALW issue, to produce specific action commitments, to commit new resources for small arms action, and to put in place a followup mechanism to hold the international community to account for the implementation of its promises. Were those objectives achieved? Political attention has certainly been focussed on the small arms issues, attention that, with persistent civil society engagement on the issue, holds the promise of being translated into a genuine political will to act. Some action was promised, at least in general terms, but the conference was disappointing for its failure to extract firm commitments. New resources were not formally committed, although some states used the occasion of the conference to make firm pledges. An effective follow-up process was established, so there can be some increased hope that while commitments this time around were overly tentative, future global events and conferences will renew the pressure to act in response to this urgent and global problem. Endnotes 1 For an overview of commonly proposed measures see Regehr 2001. 2 Canada proposed a new paragraph to indicate factors that should be taken into account by states when they assess applications to export military goods such factors as: a) respect for human rights and fundamental freedoms in the recipient country; b) the internal situation in the recipient country and its regional situation, in the light of existing tensions or armed conflicts; c) the record of compliance of the recipient country with regard to international obligation and commitments, in particular on the non-use of force, on non-proliferation, arms control and disarmament, and on international law governing the conduct of armed conflict; d) the nature and the cost of the arms to be transferred in relation to the circumstances of the recipient country, including its legitimate security and defence needs, and to the objective of the least diversion of human and economic resources to armament; e) the requirements of the recipient country in exercising its right to individual or collective self-defence in accordance with Article 51 of the Charter of the United Nations; f) the question of whether the transfers would contribute to an appropriate and proportionate response by the recipient country to the military 7

and security threats confronting it; g) the legitimate domestic security needs of the recipient country; and h) the requirements of the recipient country in enabling it to participate in peacekeeping or other measures in accordance with decisions of the United Nations. The European Union presented a similar list of criteria. References Regehr, Ernie 2001, Small Arms and Light Weapons: A Global Humanitarian Challenge, Project Ploughshares Working Paper 01-4, Waterloo, July. United Nations 2001, Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, 9-20 July (A/Conf.192/15). Project Ploughshares is an ecumenical agency of the Canadian Council of Churches, formed to implement the churches imperative to pursue peace and justice. The mandate given to Project Ploughshares is to work with churches and related organizations, as well as governments and non-governmental organizations, in Canada and abroad, to identify, develop, and advance approaches that build peace and prevent war, and promote the peaceful resolution of political conflict. and they shall beat their swords into ploughshares, and spears into pruning hooks; nation shall not lift up sword against nation; neither shall they learn war any more (Isaiah 2:4) 8