International Legal Affairs: Volume 2, Number 4


Previous articles regarding UN gun control measures have warned of current and pending actions at the United Nations that threaten to limit, or control an individual’s use and access to firearms.

Most commonly known is the UN Arms Trade Treaty, which mainly focuses upon the international arms trade as it relates between sovereign countries.  In terms of drafting, adoption, and international implementation, the Arms Trade Treaty may be difficult to implement politically.  Treaties require the U.S. Congress to vote and approve, to the extent that the treaty (as drafted) meets the requirements of the U.S. Constitution.  An effort to limit or eliminate firearm use and possession in the United States via the Arms Trade Treaty would likely fail, given the recent U.S. Supreme Court decision in McDonald v. Chicago, where the court determined that individuals have a right to possess and bear arms.

Passage and implementation of the Arms Trade Treaty may not occur.  Other UN treaties have been passed by the International body, only to be ignored by the United States.  The 1997 anti-personnel mine ban treaty (also known as the Ottawa Convention) has not been signed by the United States, or 36 other countries, including China, Finland, and the Republic of (South) Korea.

Unfortunately, passage and adoption of the Arms Trade Treaty as U.S. law may not be required.  The U.S. State Department Directorate of Defense Trade Controls regulates the temporary import and permanent export of defense hardware and defense services that originate or pass through the United States.  To the extent that DDTC has the ability to modify U.S. regulation (as it applies to international transactions and the export of arms from the United States) one should expect DDTC to adopt and incorporate some aspect of the Arms Trade Treaty.  Any adoption of the Arms Trade Treaty by DDTC would probably relate only to the export and temporary import of arms, and would not affect an individual’s right to possess firearms within the United States.

Efforts to Pass the International Small Arms Control Standard
Lesser known, and potentially more threatening is the U.N. International Small Arms Control Standards.  Unlike a treaty, a Standard does not require a vote of the U.N. membership.  Instead, a Standard is established through U.N. sub-committees and non-governmental organizations.  Non-governmental organizations submit proposed language to the U.N. subcommittee that is reviewed and discussed.  Input is accepted from recognized groups to proposed changes.  Upon completion, the sub-committee votes on the language for adoption.  If the vote is successful, the language becomes a new Standard by which all U.N. members are expected to follow and abide.  The Standard also acts as precedent to future U.N. actions, to include the drafting of the Arms Trade Treaty.

Officially, the goal of the International Small Arms Control Standard is to develop a set of internationally accepted and validated standards that provide clear and comprehensive guidance to practitioners and policy-makers on small arms and light weapons control.  While the official draft language is confidential and not available to those outside of the drafting process, brief glimpses may be gleaned from non-government organizations participating in the drafting process.  One of the most vocal parties to the drafting process is the International Action Network on Small Arms (IANSA).  Due in part to IANSA’s involvement and the general lack of knowledge regarding firearms, there is a justifiable fear that the Standard is intended as an attempt to limit the possession of, and access to firearm by civilians, worldwide.

Potential Application of ISACS to the United States
Recognizing that the official language of the ISACS is confidential, one should expect the proposed language submitted by IANSA to include issues related to human rights, international humanitarian law, and sustainable development.  Within a recent press release, IANSA sought to punish non-conforming countries if weapons could be used to violate human rights, violate international humanitarian law, or adversely affect sustainable development.  While this sounds ideal in theory, the definitions of “human rights and humanitarian law” are key.  Alleged violations of either would subject non-participating countries and or citizens at risk for exclusion from international trade or international travel.

Human Rights
Proposed human rights violations include acts of domestic violence, which is never acceptable.  Nevertheless, IANSA has proposed official government action to consider an individual’s history of domestic violence when dealing with gun license applications and renewals.  So far, so good.  The United States currently prevents those convicted of a misdemeanor violation of domestic violence from possessing a firearm via 18 U.S.C. § 922(g)(9), commonly known as the Lautenberg Amendment.  IANSA goes further, by proposing that Police discreetly consult current and former spouses or partners, informing them of an individual’s intention to acquire a firearm license.  Most shockingly, IANSA has also proposed that police should gain written consent from spouse or partner prior to granting a firearm license.

These type of limitations and restrictions have no place in creating a UN Standard on how firearms should be possessed by civilians within the U.S.  Nevertheless, if passed, these types of restrictions will become the de facto standard by which all nations are expected to implement.  Sadly, these types of restrictions could potentially be deemed as “reasonable restrictions” under the U.S. Constitution.  While the U.S. Supreme Court has the sole ability to determine what restrictions are reasonable and valid, enactment of such restrictions by the District of Columbia or Chicago (two known anti-gun municipalities) would restrict thousands of legal citizens from acquiring and possessing a firearm.

Defining a human rights violation would also be left to individual countries to further define.  Clearly, the United States has established a no-fly list that prevents known or suspected terrorists from boarding flights bound to the United States.  This type of restriction is not a human rights violation.  These types of restrictions are based upon threats to national security and crime control measures.  Under the proposed human rights language, it would be possible for individual countries to prohibit those engaged in human rights violations from entering the enacting country.  The U.S. led action in assisting South Vietnam in its 1960’s era civil war could be deemed as a use of firearms used to commit human rights violations.  In the event such an action took place, a country could potentially bar the admission of Vietnam veterans who may have had no involvement in any human rights violations.  While this example may seem absurd, political actions of this nature by France, Sweden, and other politically progressive countries would not be inappropriate under the proposed ISACS language.

Shooting Sports
Under the proposed IANSA language, shooting sports would be limited to “competitive and recreational sports that involve tests of proficiency.”  Under the proposed IANSA language, there is no provision for hunting or recreation use of firearms outside of an organized shooting event.  Instead, “competitive and recreational sports” are further defined as those that “are part of the Olympics and take place in most of the world. Competitions are organized at international, national, regional and local club levels.”  While this language appears to be neutral on its face, the concern is that use and possession of firearms will be limited to recognized sports clubs or organizations, with no provision for storage and use by individuals outside of an officially sanctioned event.  While this may seem farfetched (and clearly in violation of the U.S. Constitution) such restrictions are common in Europe.

The International Small Arms Control Standard is currently being drafted and reviewed.  While ISACS and the Arms Trade Treaty are officially unconnected, the concern is that ISACS will create a precedent for the ATT and future national regulations.  Currently, anti-gun NGOs are pressing to expand the ATT beyond logical military small arms issues, and into the legal possession of firearms by individuals.  Adoption specific language restricting or limiting an individual’s rights within ISACS is easier than adoption of the same language within the ATT, while creating a precedent for similar language in the ATT or future treaties.

Unfortunately, the ISACS process is open only to recognized non-governmental organizations.  The good news is that the U.S. based National Shooting Sports Foundation and National Rifle Association are aware of the pending ISACS standard, and are getting involved.  Stay tuned, the gun grabbers are looking to restrict almost all aspects of the small arms trade, from possession by individuals, wholesale and retail sales, and international transfers.  This column will continue to update you as additional information is made public.