Most recently, the omnibus government funding bill passed by the Congress earlier this month contained new prohibitions on the administration using any funds to implement the conventional arms treaty. Under U.N. procedures the U.S. would be liable for 22 percent of the budget for the ATT secretariat, the body that will oversee its implementation.
In October 2013, 50 U.S. senators signed a letter to President Obama pledging not to give advice and consent to the ATT. In order for a treaty to be ratified, no more than 33 senators can oppose it.
The opposition is a setback for the administration, which maintains that its hard-nosed stance during negotiations delivered a text that meets key U.S. priorities. Still, ATT critics are urging lawmakers in the new Congress to take steps to ensure the administration does not advance the treaty even if it is not ratified.
Alarm bells have been triggered by advocacy groups’ assertions that the treaty will form part of the broad body of international law, implying that even in the absence of Senate ratification the U.S. will be bound by its provisions.
In a statement last week, for instance, Amnesty International said that the ATT “will become binding international law on 24 December, after which it will require states to adhere to strict global rules on international arms transfers to stem the flow of conventional arms and munitions that fuel atrocities and abuse.”
Similarly, Germany’s mission to the U.N. in a release this month described the ATT as “a legally binding treaty that will regulate the international arms trade by establishing universal criteria for the export and import of arms.”
Not so, says Heritage Foundation senior research fellow Ted Bromund.
“Both the administration and Congress should formally state that the ATT is simply a treaty, that it is binding only on nations that have ratified it, that it is not customary international law, and that its entry into force has no implications for the U.S.,” he said in a recent issue brief.
Entry into force Wednesday comes 90 days after a threshold of 50 ratifying states was crossed last fall. The U.S. is among 70 nations that have signed, but not ratified, the treaty.
Another 60 countries had as of Wednesday both signed and ratified the ATT. Most are European democracies and island nations in the Caribbean and Pacific.
Only seven of Africa’s 54 countries (Burkina Faso, Guinea, Mali, Nigeria, Senegal, Sierra Leone and South Africa) are among them, and no Middle East country bar Israel has ratified – even though those regions include conflict zones most affected by uncontrolled arms flows.
When the U.N. General Assembly adopted the ATT in April 2013 only three member-states voted against it: Iran, Syria and North Korea.
But the list of nations that have not signed the treaty is far longer, and includes some of the world’s more controversial regimes. Among the non-signatories are Russia (the world’s second biggest arms exporter, after the U.S.), China (the fifth biggest), Cuba, Ecuador, India, Iran, Iraq, Nicaragua, North Korea, Pakistan, Qatar, Saudi Arabia, Syria, Venezuela and Vietnam.
A key aim of the ATT is to curb arms transfers that violate embargoes or would facilitate acts of genocide, war crimes or crimes against humanity, a goal that even most critics of the ATT would not oppose.
But the text goes further, using language which some worry may impede U.S. attempts to provide arms to countries that are important U.S. allies, but are also often treated as pariahs at the U.N., such as Israel or Taiwan.
In a statement Tuesday hailing the ATT’s entry into force, U.N. human rights commissioner Zeid Ra’ad Al Hussein reiterated that, over and above the genocide/war crimes criteria, “if there is an overriding risk that exported arms could be used to commit or facilitate a serious human rights violation or a serious violation of international humanitarian law, then such transfers should be stopped.”
During last summer’s conflict between Israel and Hamas, some ATT proponents cited the treaty as they called on all countries not to send arms to either party in the conflict – despite the fact one is a sovereign government and U.S. ally while the other is a U.S.-designated foreign terrorist organization.
In their Oct. 2013 letter to Obama, the 50 anti-ATT senators voiced concern that vague and easily politicized treaty criteria “will restrict the ability of the U.S. to conduct our own foreign policy,” and so impinge on national sovereignty.
“We are indeed deeply concerned that the treaty criteria as established could hinder the United States in 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,” they wrote.
Bromund said moves by the U.S., and by some European countries, to provide military aid to rebel forces in Syria were prima facie violations of the ATT, as treaty proponents have pointed out.
“This demonstrates that the advocates do seek to constrain U.S. policy and that the ATT, if the Senate ratified it, would impinge on U.S. sovereignty,” he wrote. “Congress should congratulate the administration for violating the ATT and call on it to recognize the implications of this violation by unsigning the ATT.”
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 George W. Bush took that step in 2002 in the case of the treaty that established 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 he did not formally “unsign” it. The Clinton-era Kyoto signature remains in place.)
When Secretary of State John Kerry signed the ATT on behalf of the U.S. in September 2013, he declared that it achieved three important priorities for the U.S. – “a more peaceful world,” “a higher level of security” and “protection of human rights.”