By George Russell

One day after President Barack Obama won re-election, his Administration agreed to a new round of international negotiations to revive a United Nations-sponsored treaty regulating the international sale of conventional arms, which critics fear could affect the Constitutionally protected right of U.S. citizens to purchase and bear firearms.

Now, in the wake of the Newtown school massacre and the President’s January 16 promise to “put everything I’ve got” into a sweeping new series of gun control initiatives, the fate of that treaty, which enters a “final” round of negotiations this March, may loom as more important than ever, according to critics, some of whom argue that the U.S. should never have entered the talks in the first place.

Their concerns remain, despite the fact that President Obama repeated his support for the Second Amendment and “our strong tradition of gun ownership and the rights of hunters and sportsmen” on January 16. (The subject never came up in his second inaugural address.)
U.S. diplomats have declined a Fox News request to discuss, among other things, the direction of the talks, and whether the other 192 countries involved respect that U.S. “red lines” in the negotiations—including the Administration’s assertion that “the Second Amendment to the Constitution must be upheld”—are truly inviolate.

The Administration first agreed to take part in the U.N. arms treaty negotiations in 2009—the same year in which it launched the now-notorious Fast and Furious operation, which provided weapons to illicit gun traders, ostensibly to track gun-running operations to Mexican drug cartels. Those negotiations proceeded irregularly, but seemed to founder last July.

But then, the U.S. joined a 157-0 vote, with 18 abstentions, of a U.N. General Assembly disarmament committee, on November 7, 2012, —the day after President Barack Obama won his second-term victory–to create the March round of talks. (A State Department official insisted to Fox News that the vote only came after the U.S. elections due to the disruption caused by Hurricane Sandy; otherwise, it would have taken place earlier.)

Amid the fog surrounding the treaty process, however, one thing seemed clear: an issue that deeply involves American rights and freedoms is back on the table, linked to the lingering problem of how to keep conventional military weapons out of the hands of terrorists and extremists. The State Department itself, on a web page that also lists its “red line” reservations in the negotiations, calls it a “complex but critical issue.”

For many critics, however, the draft version of the treaty is also a mine field of clauses and propositions that mandate a much greater federal role in U.S. gun sales, and potentially tie the U.S. to the gun control agenda of other governments or regimes.

“The treaty is drafted as if every nation in the world has centralized control of the arms industry and arms sales, which is not the case here,” said Ted Bromund, a security policy expert at the conservative Heritage Foundation who has followed the arms trade treaty process closely, and who believes the U.S. should bail out of the March treaty talks.

“We’ve already got an enormous body of statutes and practice on the import, manufacture and export of firearms, the most elaborate in the world,” Bromund told Fox News. “How would we use a treaty that gives enormous discretion to the Administration on the import and export of arms? Essentially, it would give the Administration much more control than it already has.”

Moreover, the treaty is unlikely to change any behavior on the part of lawbreaking regimes and dictatorships around the world whose handing on of weapons to terrorists or criminal enterprises is supposedly one of the activities the treaty will curb.

On the surface, the treaty, which aims to regulate the sale and resale of weapons ranging from tanks to missiles to rifles and pistols, is aimed at creating a more manageable environment for the international arms trade.

The multi-billion-dollar market in illicit weapons sales, according to a report by U.N. Secretary General Ban Ki-moon, leads to “armed violence, conflict and civil unrest involving violations of international law, abuses of the rights of children, civilian casualties, humanitarian crises and missed social and economic opportunities.”

Critics of the treaty effort, however, see something equally bad: a nebulous international agreement that does nothing to improve U.S. security but opens the way to “damage by a thousand cuts,” as one critic put it, to the U.S. civilian right to bear arms and also to American foreign policy interests, no matter what the State Department may currently say about defending both.

For one thing, notes Bromund, most nations negotiating the treaty—which include Russia, China and Iran—”do not recognize the human right of self-defense” against tyrannical or murderous regimes—the essential basis of the Second Amendment.

Instead, a draft version of the treaty prepared in advance of the November vote emphasizes the “the inherent right of all States to individual or collective self-defense,” and leaves it up to individual nation states themselves to police such issues as whether their arms sales will “be used to commit or facilitate a serious violation of international humanitarian law.”

CLICK HERE FOR THE DRAFT TREATY

Whether some of the world’s worst human rights violators, who are also arms exporters to even more murderous regimes, would spend much time worrying about such niceties, Bromund indicated, is unlikely.

“All these other nations are free to improve their export policies without any kind of treaty at all,” Bromund argues. “They choose not to. What does that tell you about their intentions?

“It is profoundly unlikely to restrain really bad actors, or make the less bad improve. It is basically pernicious. Relying on a treaty to stop irresponsible nations from acting irresponsibly is about as sensible as seeking to solve the problem of crime by outlawing it. If the arms trade treaty could work, it would not be necessary.”

Moreover, critics point out that the draft version of the treaty contains a number of provisions that would make a bad situation from the U.S. point of view even worse. Among them:

–various clauses in the treaty mandate domestic gun control as part of an ostensibly international obligation to end illegal “end use,” creating the possibility of a broad expansion of national regulatory powers.

–terms such as the “transfer” of arms under the treaty are undefined, again leading the possibility of broad regulatory expansion—and not merely to adhere to the arms treaty. According to one clause, for example, signatories “shall not authorize any transfer of conventional arms within the scope of this Treaty if the transfer would violate its relevant international obligations, under international agreements to which it is a Party”—a clearly open-ended commitment.

–another clause bans the transfer of arms to “facilitate” among other things “crimes against humanity”—a phrase now often used, in the highly-charged U.N. environment, for allegations against Israel. The same vagueness applies to terms like “serious violations to international humanitarian law“—a fuzzy body of assertions that no single nation may endorse.

–as currently written, the treaty allows its subsequent amendment by a majority of the original parties, meaning that the U.S. could later find it was bound by provisions it had not agreed to.

A more subtle flaw, notes Bromund, is that any badly designed treaty that the U.S. agrees to at the negotiations, and that the President signs, can have an effect on U.S. laws and regulations even though it would still need to be ratified by the Senate, which must approve international agreements by a two-thirds majority.

The reason: once a treaty is signed, the parties must respect its “object and purpose” even before ratification—or if ratification does not occur—which is “completely in the eye of the beholder,” Bromund says.

Case in point: the Kyoto Protocol on greenhouse gas emissions, which was signed by President Bill Clinton but never ratified by the U.S. Senate. Nonetheless, the U.S. participates in Kyoto Protocol meetings, observes greenhouse gas limits of its own, and operates as if conforming U.S. legislation may pass in the future.

Thus even agreements that are not ratified by the U.S. can become what Bromund calls “zombie treaties” – feeding on internal issues that radically define and distort U.S. political and regulatory behavior for decades.

John Bolton, a former U.S. Ambassador to the U.N. and Fox News contributor, notes that the already controversial treaty could get worse, from a U.S. point of view, before it reaches its final form in March.

“My experience is that a lot of the worst provisions in these agreements come in at the last minute,” Bolton says. He added: “It’s unbelievable that the issue is still kicking around.”

In 2001, as U.S. assistant secretary of state for arms control and international security during the first George W. Bush Administration, Bolton voiced similar concerns about aspects of an earlier U.N. effort to install a “Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects.”

The Program of Action is far foggier than the proposed new treaty. Among other things, it advocates “mobilizing the political will throughout the international community to prevent and combat illicit transfers and manufacturing of small arms and light weapons in all their aspects,” and to “raise awareness of the character and seriousness of the interrelated problems associated with the illicit manufacturing of and trafficking in these weapons.”

In other words, it promotes lobbying and advocacy, often by non-governmental organizations with political agendas of their own, on behalf of the arms sales goals.

The Program of Action, which followed a previous attempt to get a formal international arms sale treaty passed in the 1990s, is still in existence, under the aegis of the United Nations Office of Disarmament Affairs.
It holds periodic conferences and demands that adherents provide reports on their progress toward Program goals.

For example, Iran—which funnels arms to terrorist groups in Lebanon, Iraq and elsewhere, as well as to the Assad regime in Syria—noted this year that it in 2011 it had created a “special judicial authority” to investigate and punish violators of a new law “on the punishment or trafficking in arms and ammunitions and possessors of illicit arms and ammunitions.”

The penalties under the law, and the nature of the new “judicial authority,” were not outlined.

CLICK HERE FOR A COPY OF IRAN’S PROGRESS REPORT

“Iran is well respected at the U.N.,” notes Wayne LaPierre, executive director of the National Rifle Association (NRA), who calls the radical Islamic republic a member in good standing of the “club of governments” who pursue international gun control law for their own ends.

And most of the killing of civilians in the developing world, he adds, “is done by governments in that club.”

George Russell is editor-at-large of Fox News and can be found on Twitter @GeorgeRussell. Click here for more stories by George Russell.

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