As Congressional Resistance Mounts, What’s Next for the Arms Trade Treaty?

October 18, 2013 - 4:05 AM

kerry ATT

Secretary of State John Kerry signs the U.N. Arms Trade Treaty in New York on September 25, 2013. (Photo: State Department)

(CNSNews.com) – Half of the Senate and more than two-fifths of the members of the House of Representatives have advised the administration of their opposition to the global conventional arms trade treaty it signed last month, raising questions about its future implementation in the U.S., the world’s largest arms exporter.

In a move largely overshadowed by the standoff over government funding and Obamacare, 50 senators sent a letter to President Obama on Tuesday, pledging not to consent to the U.N. Arms Trade Treaty (ATT) and urging him to notify its depository – the U.N. secretary-general – that the U.S. does not intend to ratify.

In order for a treaty to be ratified, no more than 33 senators can oppose it.

Led by Sens. Jerry Moran (R-Kan.), James Inhofe (R-Okla.) and Joe Manchin (D-W.V.), the letter was signed by every Senate Republican except Sen. Mark Kirk (R–Ill.), and by five Democrats – Sens. Manchin, Mark Begich (Alaska), Kay Hagan (N.C.), Mary Landrieu (La.) and Mark Pryor (Ark.).

Also on Wednesday, Rep. Mike Kelly (R-Pa.) sent a letter signed by 181 House members from both parties, informing the president they reject the ATT and will “oppose any efforts by this administration or future ones to implement or enforce this treaty through executive action.”

While the Senate has advise and consent authority on international treaties, the House would be responsible for funding the ATT’s implementation in the U.S. and for passing any implementing legislation that may be necessary.

After years of negotiations, the U.N. General Assembly adopted the treaty in a vote last April, and Secretary of State John Kerry signed it in New York last month, declaring that it achieved three important priorities for the U.S. – “a more peaceful world,” “a higher level of security” and “protection of human rights.”

Once it enters into force – after at least 50 countries have ratified it – the legally-binding treaty will regulate the trade in conventional weapons ranging from small arms to warships.

A key aim is to curb transfers that violate embargoes or would abet acts of genocide, war crimes or crimes against humanity.

Concerns

The Senate and House letters both listed six main objections:

--The administration abandoned its own “red line” requirement that the treaty be based on consensus. When negotiations failed to deliver a consensus agreement, it was adopted by majority vote.

--The ATT allows amendment by three-quarters majority vote, raising the possibility that in the future the U.S. will be pressured to comply with amendments it deems unacceptable.

--The ATT “includes only a weak non-binding reference to the lawful ownership and use” of firearms and “encourages governments to collect the identities of individual end users of imported firearms at the national level, which would constitute the core of a national gun registry.”

--The State Department has acknowledged that the treaty is “ambiguous.”

--Vague treaty criteria “will restrict the ability of the U.S. to conduct our own foreign policy,” impinging on national sovereignty.

--Treaty criteria could hinder the U.S. from providing arms to key allies like Israel and Taiwan.

Shannon Scribner, humanitarian policy manager at Oxfam America – a strong treaty advocate – voiced concern Thursday about the pushback from Congress.

“We are disappointed that fifty senators were moved to sign onto a letter filled with myths and misperceptions of an international treaty that reflects already existing U.S. laws,” she said in response to queries.

“Administration officials have stated that no implementing legislation would be required to implement the treaty and no law would need to be changed. The American Bar Association has also confirmed that the treaty is compatible with the Second Amendment,” Scribner said.

“We are confident that once senators who understand the value of international agreements read the treaty and conduct the necessary oversight, they will support ratification.”

‘Object and purpose’

In cases where the Senate refuses to ratify a treaty, the executive branch may “unsign” it, notifying its depository that the U.S. does not intend to become a party, and that it has no legal obligation arising from its original signing.

President Bush did this in 2002 in the case of the treaty creating the International Criminal Court. (In contrast, Bush a year earlier announced the U.S. would not comply with the Kyoto Protocol on climate change, but did not formally “unsign” it. The Clinton-era Kyoto signature remains in place.)

In cases where a treaty has been signed but not ratified – either because ratification failed in the Senate, as with the Comprehensive Test Ban Treaty in 1999; or because an administration has chosen not to bring it to the Senate, as with Law of the Sea – the situation is somewhat ambiguous.

The Vienna Convention on the Law of Treaties, which governs international treaties, states that when a country has signed a treaty then – unless it has made clear its intention not to become a party –  it “is obliged to refrain from acts which would defeat the object and purpose.”

The U.S. is not a party to the Vienna Convention itself, however, since the Senate never ratified it. Nonetheless, the State Department says that “The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.”

Lawmakers’ concerns about the Obama administration’s possible intentions regarding the ATT in the absence of ratification are reflected in the letters sent to the president on Wednesday.

“[W]e pledge to oppose the ratification of this treaty, and we give notice that we do not regard the U.S. as bound to uphold its object and purpose,” the senators’ letter concluded.

The “object and purpose” language, which also appeared in the House letter, points directly to the Vienna Convention.