The United Nations Small Arms Treaty

From The Washington Post:

U.N. approves global arms treaty

By Colum Lynch, Updated: Tuesday, April 2, 6:15 PM

UNITED NATIONS — The U.N. General Assembly voted overwhelmingly Tuesday to create the first pay for homework treaty regulating the international arms trade, a landmark decision that imposes new constraints on the sale of conventional arms to governments and armed groups that commit war crimes, genocide and other mass atrocities.

The vote was hailed by arms-control advocates and scores of governments, including the United States, as a major step in the global effort to put in place basic controls on the $70 billion international arms trade. But the treaty was denounced by Iran, North Korea and Syria, which maintain that it imposes restrictions that prevent smaller states from buying and selling weapons to ensure their self-defense.

The treaty covers a wide range of conventional weapons, including battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, missiles and small arms. Under the accord, these items cannot be transferred to countries that are subject to U.N. arms embargoes or to states that promote genocide, crimes against humanity or war crimes.

Although legally binding on states that ratify it, the treaty does not establish an enforcement agency. Instead, signatories will be required to pass new laws and regulations governing their arms trade and national authorities will be responsible for enforcing them.

More at the link.

Perhaps someone can tell me: if the United States does ratify this, how can this treaty “require” the Congress to “pass new laws and regulations governing their arms trade?” The Congress can, and will, do as it pleases.

The US was one of the co-sponsors of this treaty, and the Post stated that various federal agencies will look at the provisions of the treaty before President Obama signs it. However, the Constitution specifies that ratification of any treaty requires a 2/3 supermajority approval vote in the United States Senate, and that looks to be somewhat difficult to achieve for this treaty. The National Rifle Association contends that the treaty would violate Americans’ Second Amendment rights and has vowed to oppose it; the United States did force one change in accordance with those rights:

(The treaty) covers battle tanks, armored combat vehicles, large-caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers, and small arms and light weapons. A phrase stating that the treaty covers these weapons “at a minimum” was dropped, according to diplomats, at the insistence of the United States. Supporters complained that this limited the treaty’s scope.

The Senate voted last month that the United States should not sign the treaty, but that does not prevent the President from doing exactly as he pleases. Remember how the Senate voted 95-0 for the Byrd-Hagel Amendment, which stated that it was the sense of the Senate that President Clinton should not sign the Kyoto Protocol, as it was then structured, but President Clinton sent Vice President Gore to Kyoto, Japan, to sign the treaty anyway. After having it signed, President Clinton never sent the Kyoto Protocols to the Senate for a ratification vote, because he knew it would be defeated. President Bush later withdrew our signature from the Kyoto Protocols; I had stated, back in 2006, that rather than simply withdrawing our signature, he should submit it to the Senate for a ratification vote, knowing it would be rejected.

This is the part which concerns me. The Constitution clearly specifies that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.1 But several Presidents, both Democrats and Republicans, have signed treaties and never submitted them to the Senate for ratification. That creates a murky legal status, in which the United States hasn’t ratified the treaty, but is obligated, under international law, to do nothing to undermine the treaty. That means, in practice, that the United States government complies with the provisions of the signed but unratified treaties.

This should not happen. If President Obama does sign the Small Arms Treaty, he should do his duty, as required by the Constitution, and submit it for ratification by the Senate.

  1. Article I, Section 2, paragraph 2.

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