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   This module is a resource for lecturers   

 

International instruments with global outreach

 

The Arms Trade Treaty, UNTOC and its supplementary Firearms Protocol are multilateral treaties, which contain legally binding and mostly mandatory provisions. States accede to these instruments through a formal accession process of ratification, acceptance or approval, following which the States become party to the instruments and commit to comply with the obligations under them. Although adopted by the same body, the United Nations General Assembly, the United Nations Programme of Action (UNPoA) and the International Tracing Instrument (ITI) are on the other hand non-binding instruments, which do not require a formal accession process. They therefore do not establish legal obligations but are based on voluntary compliance and require political commitment. The UNPoA is, as the name suggests, a programme setting out measures that States endeavour to undertake at the national, regional and global levels. Similarly, the ITI may be termed a standard-setting tool to facilitate tracing processes.

The comparative analysis provided in this Module is largely based on the UNODC Study " Comparative Analysis of Global Instruments on Firearms and other Conventional Arms: Synergies and Policy Options " of 2016.

Figure 1 Global instruments and their legal nature

Each of these instruments addresses different branches of international law, for example transnational and international criminal law, arms proliferation and control, and legal trade regulation. Their respective normative processes take place within different institutional frameworks, and from different but complementary angles and perspectives: crime control, disarmament, and arms trade regulation.

Figure 2 International Legal Framework on Firearms and Other Conventional Arms
 

The United Nations Convention against Transnational Organized Crime

 

Background

The United Nations Convention against Transnational Organized Crime (UNTOC) was unanimously adopted by the United Nations General Assembly and opened for signature in Palermo, Italy, in December 2000. It entered into force on 29 September 2003 and as of March 2019 it has 189 State parties. The Convention is the first international instrument to address transnational organized crime in all its forms and manifestations. The Convention provides a strategic framework to prevent and combat organized crime effectively, targeting criminal organizations and networks, as well as their individual members and leaders, regardless of the criminal offences committed. It also aims to dismantle the organizations, depriving them of their illicit assets, and bringing their perpetrators to justice.

Purpose and scope of application

The adoption of UNTOC was the result of a long process, which began in the United Nations in the early 1990s, with the aim of responding to the growing threats posed by organized crime. Its statement of purpose is to " promote cooperation to prevent and combat transnational organized crime more effectively" (Article 1).

To this end, the Convention applies a broad scope of application as its provisions are meant to be applied to the prevention, investigation and prosecution not only of the offences established in accordance with Articles 5, 6, 8 and 23 of the Convention, and the offences established under each of its three Protocols, but also to any other serious crime as defined by the Convention, " where the offence is transnational in nature and involves an organized crime group" (Article 3). To be considered such, a 'serious' offence must be " punishable by a maximum deprivation of liberty of at least four years or a more serious penalty" (Article 2). As noted in Module 6 on National Regulations on Firearms, this condition is not always met with regards to firearms related offences, creating a first and important obstacle to concerted actions against firearms trafficking.

Interestingly, the Convention does not define organized crime but provides a functional definition of 'organized criminal group', which shall mean " a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit" (Article 2(a)).This definition is of particular importance in the field of firearms trafficking as it will enable authorities to differentiate small scale administrative violation of firearms control provisions from larger scale and organized forms of illicit manufacturing and trafficking offences, and thus differentiate its criminal justice response accordingly.

Key provisions

The Convention provides a set of interrelated provisions aimed at enabling investigation and prosecution, and compelling international judicial and law enforcement cooperation to prevent and combat organized crime. States parties to the Convention commit themselves to adopt a series of measures against transnational organized crime. The following measures are of particular relevance for the purpose of preventing and combating illicit firearms trafficking and related offences:

  • The criminalization of (a) participation in an organized criminal group; (b) money-laundering; (c) corruption and (d) obstruction of justice, as domestic criminal offences (Article 5);
  • The adoption of measures to enable seizure and confiscation of proceeds of crimes, including property, equipment and other instrumentalities used or destined to be used in criminal offences (Article 12);
  • The establishment of the civil, administrative or criminal liability of legal persons (Article 10) and the adoption of broad measures that allow the establishment of jurisdiction over the offences established under the Convention and the Protocols, with a view to avoid creating safe havens for criminals (Article 15);
  • The adoption of special investigative tools and techniques, such as controlled deliveries, wiretapping, use of undercover agents both nationally and internationally (Article 20); establishment of Joint Investigative Bodies (Article 19); including measures for the protection of victims and witnesses (Article 24);
  • The adoption of far reaching measures for judicial cooperation, including extradition (Article 16), mutual legal assistance (Article 18), and for cooperation with and among law enforcement authorities (Articles 26 and 27).

A detailed review of the reasons for the adoption, the historical context, and the features of the Convention are provided in Module 14 of the E4J University Module Series on Organized Crime.

The Convention is further supplemented by three additional Protocols, which target specific areas and manifestations of organized crime: the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Protocol Against Human Trafficking); the Protocol against the Smuggling of Migrants by Land, Sea and Air (Protocol against Smuggling in Migrants); and the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition (Firearms Protocol). The Convention and its supplementary Protocols reinforce one another and must therefore be interpreted in conjunction. Applying the Convention to prevent and combat serious firearms related offences, such as the illicit manufacturing, trafficking and diversion of firearms, is of crucial importance and is sometimes neglected by the 'firearms community'.

Governing mechanism

The Convention establishes a Conference of Parties to the Convention and its Protocols Thereto as the governing body tasked to monitor and support the full implementation of the instruments by State parties. The Conference meets on a biannual basis, supported by several Working Groups established by the Conference, and by a Secretariat, whose functions are performed by the United Nations Office on Drugs and Crime (UNODC).

At its different sessions, the Conference has adopted in its final reports a number of resolutions aimed at promoting and facilitating the ratification and implementation of the Convention and its Protocol Thereto, by providing guidance to Member States and mandates to its State Parties as well as to its Secretariat on specific topics of interest. In 2018, the Conference of Parties adopted a Review Mechanism to review the implementation of the Convention and its Protocols by State Parties, based on a peer review mechanism and a multi-year workplan adopted by the Conference, which is expected to start in 2020.

Statement of purpose (Article1)

To prevent and combat transnational organized crime more effectively.

Use of terms (Article 2)

  • Organized criminal group
  • Serious crime
  • Structured group
  • Proceeds of crime
  • Confiscation and seizure

Scope of application (Article 3)

The Convention shall apply, to the prevention, investigation and prosecution of:

  • The offences established in accordance with articles 5, 6, 8 and 23 of this Convention;
  • Offences established in accordance with its Protocols;
  • Any other serious crime where the offence is transnational in nature and involves an organized criminal group.

Procedural and administrative Measures

  • Liability of legal persons (Article 10)
  • Extended jurisdiction (Article 15)
  • Seizure and confiscation (Article 12 and 13)

Criminalization (Article 5)

  • Participation in an organized criminal group
  • Laundering of proceeds of crime
  • Corruption
  • Obstruction of Justice

International Cooperation

  • Extradition (Article 16)
  • Mutual legal assistance (Article 18)
  • Joint investigative bodies (Article 19)
  • Special investigative techniques (Article 20)
  • Cooperation with law enforcement agencies (Article 26;
  • Law enforcement cooperation (Article 27)
Table 1 Key provisions of UNTOC
 

Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (Firearms Protocol)

 

Background

The adoption of the Convention's third Protocol on Firearms followed shortly after, in May 2001, and entered into force on 3 July 2005. As of March 2019 it has 117 State parties. As its preamble notes, the Protocol is a response to the " urgent need to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, owing to the harmful effects of those activities on the security of each State, region and the world as a whole…".

Purpose and scope of application

The purpose of the Firearms Protocol as set out in Article 2 is " to promote, facilitate and strengthen cooperation among States' parties in order to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition". The obligations that follow in the Firearms Protocol all aim towards achieving this objective. This crime prevention and criminal justice approach supports the broader aims of the Organized Crime Convention.

Article 4 describes the scope of application of the Protocol, which clearly reflects its criminal justice approach: The Protocol shall apply " to the prevention of illicit manufacturing of and trafficking in firearms, their parts and components and ammunition and to the investigation and prosecution of offences established in accordance with article 5 of this Protocol where those offences are transnational in nature and involve an organized criminal group".

The Article introduces an important caveat to its application, as it " shall not apply to state-to-state transactions or to state transfers in cases where the application of the Protocol would prejudice the right of a State Party to take action in the interest of national security consistent with the Charter of the United Nations". According to the Legislative Guide, state-to-state transactions are considered those undertaken by the State in its sovereign capacity and excludes those transactions where a State is acting in its commercial capacity (UNODC, 2004:410). This provision was intensively debated during the negotiation of the Protocol (United Nations, 2006:625-630). States favouring the inclusion of such transfers argued that they were just as susceptible to diversion to the illicit market and should therefore be subject to the same restrictions as commercial sales. The opposite views represented by other States argued that it would broaden the scope of the Protocol too far and risk taking the negotiations into sensitive territory linked to national security concern. This latter view prevailed (Mc Donald, 2002; Parker and Wilson, 2016:35).

Compared to the other global instruments, the Protocol has a narrower scope as it only applies to firearms, their parts, components and ammunition. However, as highlighted in Module 1 (Introduction to Availability, Trafficking and Criminal Use of Firearms) and Module 2 (Basics of Firearms and Ammunition), the definition of firearms contained in the Protocol is based on technical characteristics of the arm and covers most small arms and several light weapons. It does not make any distinction between the owners of the arms and, as such, the Protocol is not limited to arms of civilian use (as sometimes wrongly stated), but to any arm that fits the technical definition of the Protocol no matter whether considered by national legislation as being of civilian use or exclusively military use.

Key provisions

The Firearms Protocol is the first legally binding instrument on firearms that introduced at a global level the specific obligation for State parties to prevent and combat illicit manufacturing of, and trafficking in, firearms and their parts, components and ammunition. By ratifying the Protocol, States make a commitment to adopt a series of crime-control measures and implement in their domestic legal order three sets of normative provisions:

  • The first one relates to the establishment of criminal offences related to illegal manufacturing of, and trafficking in, firearms based on the Protocol requirements and definitions;
  • The second to a system of government authorizations or licensing intending to ensure legitimate manufacturing and export of firearms;
  • The third one to the marking, record-keeping and tracing of firearms.

In doing so, the Firearms Protocol provides a comprehensive regulatory framework that addresses both preventive and control measures with a view to regulate and control certain legal activities relating to firearms, their parts and components, and ammunition, and to establish corresponding enforcement measures through criminal offences and other types of provisions. The core of this regulatory regime builds around the principle that States must be able to exercise effective controls over firearms throughout their lifecycle to prevent their loss, theft or diversion, and to trace them at any time - from the time of manufacturing to their import and export until their final disposal, including through effective enforcement and criminal justice responses.

The Protocol includes specific preventive and security provisions related to security measures, record-keeping, marking, deactivation and disposal, confiscation and controls on the international transfer of these weapons. The record-keeping and marking requirements established by the Protocol are aimed at securing control over the firearms throughout their lifecycle.

  • Record-keeping : State parties shall keep and maintain for not less than ten years information on firearms and, where appropriate and feasible, their parts and components and ammunition as is necessary to trace and identify those items which are illicitly manufactured or trafficked and to detect and prevent such activities. Such records shall include all pertinent information related to the markings, and to the international transactions where these are involved (Article 7). The States' obligation to record the firearms and related material responds to the double purpose of ensuring proper administrative controls, as well as to support criminal investigations into their possible diversion and illicit trafficking.
  • Marking : For the purpose of identifying and tracing each firearm, State parties shall ensure the marking of firearms (some countries also mark parts and components and ammunition). In addition, the marking requirement responds to the need to ensure proper administration and management of legal firearms throughout their lifecycle, to prevent their illicit diversion and trafficking, and to support criminal investigations on their illicit manufacturing or trafficking. Marking is required:
    • At time of manufacturing, either through unique marking providing the name of the manufacturer, the country or place of manufacture, and the serial number, or maintain any alternative unique user-friendly marking with simple geometric symbols in combination with a numeric and/or alphanumeric code to permit ready identification by all States of the country of manufacture.
    • At time of import, requiring a simple marking (in addition to the unique one) permitting the identification of the country of import and where possible the year of import. This latter requirement has the clear purpose of shortening the tracing effort of law enforcement and is particularly relevant for older firearms that may have been moved several times (legally), and where the last legal record may not be with the manufacturer but with the last importing State.
    • At time of transfer from government stock to permanent civilian use, a marking permitting identification of the transferring country;
    • Also deactivated firearms shall be verified through a clearly visible mark stamped on the firearm, or a certificate attesting to the correct deactivation (Article 9).
  • Tracing : Marking and record-keeping are therefore the core elements for the functioning of an effective firearms control regime and pre-condition for the effective tracing of firearms. Tracing is defined in the Protocol as " the systematic tracking of firearms and, where possible, their parts and components and ammunition from manufacturer to purchaser for the purpose of assisting the competent authorities of States Parties in detecting, investigating and analysing illicit manufacturing and illicit trafficking". As explained in Module 7 (Criminal Justice Response), it is through the last legal record that law enforcement can detect the point of diversion of firearms, establish trafficking routes, and conduct further investigations on their illicit trafficking.
  • Deactivation / Illicit reactivation : The Protocol requires State parties that do not consider a deactivated firearm as a firearm to take the necessary measures, including the establishment of specific offences, to prevent the illicit reactivation of firearms. To this end, it establishes the fundamental principle that all essential parts of a deactivated firearm are to be rendered permanently inoperable and incapable of removal, replacement or modification in a manner that would permit the firearm to be reactivated in any way; achieved by the deactivation being verified by a competent authority and certified either through a certificate attesting to the deactivation or through a visible mark stamped on the firearm (Article 9).
  • General requirements for export, import and transit licensing or authorization systems : The Protocol places a specific focus on transnational transactions and requires State parties to establish or maintain an effective system of export and import licensing or authorization, as well as measures on international transit for the transfer of firearms, their parts and components, and ammunition. It is a system based on reciprocity between importing and exporting States, requiring them to provide authorizations to one another, and a written no-objection by the transit state, before permitting shipments of firearms to leave, arrive or transit their territory. Emphasis is put on the need to connect importing and exporting States as well as the transit State to increase vigilance over legal shipments of firearms and prevent the risk of their diversion during the transfers. In the same vein, the Protocol also requires State parties to consider regulating brokers and brokering activities. The Protocol lists the minimum information that needs to be included in the import licence or authorization, such as the place and the date of issuance, the date of expiration, the country of export, the country of import, the final recipient, a description and the quantity of the firearms, their parts and components and ammunition and, whenever there is transit, the countries of transit. Further measures to prevent diversion of transfers include the obligation of the importing State, upon request of the exporting one, to inform the latter about the receipt of the shipment, as well as the obligation of all parties to take measures to ensure authenticity of licences and authorizations (Article 10).
  • Brokers and brokering activities : With a view to preventing and combating the diversion and illicit trafficking, States are required to consider establishing a system for regulating activities of those engaged in brokering activities through a number of recommended measures. These can range from registering brokers operating within the territory to requiring them to obtain a licence or authorization to operate, up to disclosing in import and export documentation the name and location of brokers. States are also required to keep and maintain records on brokers and brokering activities as well as exchange pertinent information on them.
  • Other preventive and security measures aimed at preventing and countering the illicit manufacturing and trafficking of firearms are geared towards reducing the risk of theft, loss and diversion at the time of manufacturing and transfers: through adequate safety and security measures for stockpile management; enhancing controls at borders inter alia; measures to allow seizure and confiscation; and proper disposal of these firearms. From the criminal justice angle, similar to the Organized Crime Convention, the Firearms Protocol requires State parties to also establish certain criminal offences in their national laws, and international cooperation is given similar substantive weight. The core criminal offences established under the Protocol are:
    • illicit manufacturing;
    • illicit trafficking in firearms; and
    • illicit alteration or obliteration of markings as the basis of the Protocol requirements and definitions.
  • The Protocol also provides for additional associated "optional" offences inter alia with regard to records, illicit reactivation, illicit brokering, import, export and transit control. Moreover, the provisions in UNTOC are also critical in that regard. In particular, the articles dealing with mutual legal assistance and extradition for commission of offences covered by the Protocol are essential tools for law enforcement. The Protocol reinforces these provisions through additional ones focusing on information exchange specific to firearms trafficking, and requiring the establishment of a single point of contact or focal point to support cooperation among states on all matters relating to the Protocol (Article 13).
 

Governing mechanism

The Conference of Parties to UNTOC is also the governing body for its supplementary Protocols. An open-ended Working Group on Firearms was established by the Conference of Parties to the Organized Crime Convention to assist the Conference in the implementation of its mandate with regard to the Firearms Protocol. The Working Group meets on an annual basis and its recommendations are submitted to the Conference for consideration and possible adoption.

The Conference and its Working Groups have greatly contributed to the exchange of good practices in the implementation of the various aspects of the Firearms Protocol and provided supplementary mandates to UNODC; for example, in the field of data collection and analysis, and in the field of technical assistance and tools development inter alia. An overview of relevant reports, resolutions and recommendations of these governing bodies is available at UNODC's dedicated website.

As already mentioned, the Conference agreed on the adoption of a review mechanism on the implementation of the Convention and its Protocols in 2018. It is expected that this peer review mechanism will start in 2020.

General Provisions

Relation with UNTOC (Article 1)

The Protocol supplements and shall be interpreted together with the Convention.

Statement of purpose (Article 2)

To promote, facilitate and strengthen cooperation among State parties to prevent, combat and eradicate the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition.

Scope of application (Article 4)

The Protocol shall apply to:

  • Firearms, parts and components and ammunition;
  • The prevention of illicit manufacturing of, and trafficking in, firearms, their parts and components and ammunition, and the investigation and prosecution of offences established in accordance with the Protocol where those offences are transnational in nature and involve an organized criminal group.

Use of terms (Article 3)

  • Firearms, parts and components, and ammunition
  • Illicit manufacturing
  • Illicit trafficking
  • Tracing
  • Confiscation and seizure

Substantive criminal law (Articles 5 and 9)

  • Illicit manufacturing of firearms, their parts and components and ammunition;
  • Illicit trafficking in firearms, their parts and components and ammunition;
  • Falsifying or illicitly obliterating, removing or altering the marking(s) on firearms required by Article 8 of this Protocol;
  • Organizing, directing, aiding, abetting, facilitating or counselling the commission of the above offences;
  • Illicit reactivation of firearms (Article 9).

Procedural and administrative measures (Article 6)

  • Seizure and confiscation
  • Deactivation and disposal

Preventive and Security Measures

Record-keeping (Article 7)

  • Not less than ten years
  • Information on firearms and, where appropriate and feasible, their parts and components and ammunition that is necessary to trace and identify those items which are illicitly manufactured or trafficked, and to prevent and detect such activities.

Marking of firearms (Article 8)

For the purpose of identifying and tracing each firearm, State parties shall ensure marking:

  • At time of manufacture (unique marking and serial number, or continue to use simple geometric symbols in combination with a numeric and/or alphanumeric code)
  • At time of import;
  • At time of transfer from government stock to permanent civilian use;
  • Deactivated firearms (Article 9).

Deactivation of firearms (Article 9)

  • Prevent the illicit reactivation of deactivated firearms, if necessary through criminalization;
  • General principles for deactivation:
    • All essential parts of a deactivated firearm are to be rendered permanently inoperable and incapable of removal, replacement or modification in a manner that would permit the firearm to be reactivated in any way;
    • Verification and certification by a competent authority, or through a simple marking stamped on the firearm.

General requirements for export, import and transit licensing or authorization systems (Article 10)

Each State party shall establish or maintain an effective system of export and import licensing or authorization, as well as measures on international transit, for the transfer of firearms, their parts and components and ammunition.

  • Mutual authorization by importing and exporting State, and written no-objection by the transit state prior to the transfers;
  • Minimum information to be included in the import licence or authorization;
  • Importing States shall inform exporting States about the receipt of the shipment upon request;
  • Ensure authenticity of licences and authorizations;
  • Optional simplified procedures for temporary transfers for lawful, verifiable purposes.

Information (Article 12)

State parties shall exchange among themselves relevant case-specific information on matters such as authorized producers, dealers, importers, exporters and, whenever possible, carriers of firearms, their parts and components and ammunition.

Training and technical assistance (Article 14)

Obligation to cooperate with each other and with relevant international organizations, to receive training and technical assistance necessary to enhance their ability to prevent, combat and eradicate the illicit manufacturing of, and trafficking in, firearms, their parts and components and ammunition.

Brokers and brokering (Article 15)

Consider establishing a system for regulating the activities of those who engage in brokering activities, through:

  • Registration of brokers operating within the territory
  • Requiring licensing or authorization of brokers
  • Disclosing in transfer documentation the name and location of involved brokers
  • Providing and exchanging information, and keeping records on brokers and brokering activities
Table 2 Key provisions of the Firearms Protocol
 

The Arms Trade Treaty

 

Background

In December 2006 the United Nations General Assembly requested the Secretary-General to establish " a group of governmental experts to examine the feasibility, scope and draft parameters for a comprehensive, legally binding instrument establishing common international standards for the import, export and transfer of conventional arms" (A/RES/61/89). In response to their report, the Arms Trade Treaty (ATT) was introduced in 2009, and following a seven-year negotiation process it was adopted by vote by the United Nations General Assembly on 2 April 2013 and entered into force on 24 December 2014.

Purpose and scope of application

The ATT sets out the following objectives:

  • To establish the " highest possible common international standards" in the regulation of the international trade in conventional arms;
  • To " prevent and eradicate the illicit trade in conventional arms and prevent their diversion"
  • To promote international cooperation, transparency, and responsible action of State parties (Article 1).

The ATT is the broadest of the arms control instruments as it applies to eight categories of conventional arms, including small arms and light weapons.

Key provisions

The ATT focuses on measures to regulate the international trade in conventional arms with a view to preventing and eradicating their illicit trade and diversion into the illicit market, or for unauthorized end use.

  • It requires State parties to establish and maintain a control system for the transfers of all eight categories of arms covered by the treaty, and exports of related ammunition, parts and components.
  • It requires States to establish and maintain a national control list, and to designate a competent authority responsible for it as well as a national focal point for related information exchange (Article 5).
  • It establishes a framework for national control systems, to take measures to control arms exports and to prevent and detect their diversion into the hands of organized crime or terrorist groups, on the basis of commonly identified criteria set out in its Article 7.
  • It also sets out the specific circumstances when a transfer of the items included within the scope of the Treaty (the categories of conventional arms, their ammunition/munitions, parts and components) must be prohibited by Article 6.
  • It defines the term "Transfer" broadly to include import, export, transit, trans-shipment and brokering. The prohibitions in the Treaty apply to all these forms of transfer, whereas the criteria and risk assessment procedures apply to exports only.
  • Importing States are to take measures to ensure that appropriate and relevant information is provided, when requested, to the exporting State party to assist the exporting State party in conducting its export risk assessment process (Article 8).
  • It introduces the mandatory requirement for its State parties to take measures pursuant to its national law to regulate brokering taking place within their jurisdiction (Article 10). In this sense, the ATT is an important advancement on the progress made in the Firearms Protocol, which only encouraged State parties to regulate brokering in firearms.
  • State parties of the ATT are also required to take measures to prevent diversion.
  • Additionally, State parties must report annually on the preceding year's authorized or actual imports and exports (Article 13).
 

Governing mechanism

Although adopted in the framework of the United Nations, the ATT became an independent body, with its own small Secretariat located in Geneva. A Conference of State Parties was established as the governing body to the ATT, which meets on an annual basis and provides the framework to promote and support accession and implementation of the treaty.

Scope (Article 2)

This Treaty shall apply to all conventional arms within the following categories:

  • Battle tanks;
  • Armoured combat vehicles;
  • Large-calibre artillery systems;
  • Combat aircraft;
  • Attack helicopters;
  • Warships;
  • Missiles and missile launchers; and
  • Small arms and light weapons.

Use of terms

  • No common definition provided;
  • Reference to UN Register of Conventional Arms and other relevant UN instruments for SALW.

Transfer prohibitions (Article 6)

Prohibition to authorize any transfer of conventional arms and related items:

  • if the transfer would violate State obligations under Chapter VII of the UN Charter, in particular arms embargoes, or international obligations under international agreements relating to the transfer of, or illicit trafficking in, conventional arms.
  • if the State has knowledge at the time of authorization that the arms or items would be used in the commission of genocide, crimes against humanity, grave breaches of the Geneva Conventions of 1949, attacks directed against civilian objects or civilians protected as such, or other war crimes as defined by international agreements to which it is a party.

Export and Export Assessment (Article 7)

Prior to authorization of the export of conventional arms or related items covered by the ATT, State parties shall assess the potential that the conventional arms or items:

  • would contribute to or undermine peace and security;
  • could be used to:
    • commit or facilitate a serious violation of international humanitarian law;
    • commit or facilitate a serious violation of international human rights law;
    • commit or facilitate an act constituting an offence under international conventions or protocols relating to terrorism to which the exporting State is a party; or
    • commit or facilitate an act constituting an offence under international conventions or protocols relating to transnational organized crime to which the exporting State is a party.

Import, transit, transhipment and brokering

State parties shall take measures to ensure that adequate information is provided, upon request, to exporting States to

  • conduct national export assessments;
  • regulate brokering activities;
  • regulate transit and transhipment.
Table 3 Key provisions of the ATT
 

Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons

 

Background

The Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons (PoA) is a non-binding political framework adopted in 2001, which sets out recommended measures that States undertake to perform at the national, regional and global levels. This multi-level tiered approach, similar to the approach taken in the Organized Crime Convention, the Firearms Protocol and the Arms Trade Treaty, recognizes that States need to work at all levels and cooperate internationally to prevent, combat and eradicate the illicit trade in small arms and light weapons. The PoA framework is grounded in the awareness that the illicit manufacture, transfer and circulation of small arms and light weapons, and their excessive accumulation and uncontrolled spread in many parts of the world, undermines human security and development.

Purpose and scope of application

The focus of the PoA is on disarmament and uncontrolled proliferation of SALW. Its scope includes small arms and light weapons, but does not include their ammunition. In its preambular paragraph, States commit to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects.

Key provisions

The PoA contains recommendations that States undertake to implement, which include 23 actions at the national level, 8 at the regional level and 10 at the global level, and an additional 17 actions regarding " implementation, international cooperation and assistance". It sets out a space for collective reflection and action, and provides a framework for assistance and cooperation among States.

  • Commitments at the national level : are to a large extent similar to the provisions contained in the Firearms Protocol and are aimed at ensuring effective controls over the production of SALW and their export, import and transit. Measures to achieve this goal include inter alia commitments to marking, record-keeping and tracing of SALW; regulation of brokers; destruction, seizure and confiscation of arms; stockpile management and security; establishment of criminal offences; and designation of a national point of contact.
  • Commitments at the sub-regional and regional level : include the encouragement to States to conclude regional legally binding instruments to reinforce the non-binding commitment adopted through the PoA; and, in addition, to strengthen the regional cooperation mechanisms and networks to ensure information sharing and border control. Also contained are commitments to develop voluntary measures to enhance transparency in order to combat illicit trade in SALW. Several regional legal instruments adopted in subsequent years, especially on the African continent, reinforce and further develop the construct set out in the PoA, with a similar focus on disarmament and non-proliferation.
  • At the international level , States commit to a broad form of cooperation, which includes cooperation with the United Nations System on issues related to arms embargoes, as well as commitment to strengthen international and cross-border cooperation among them. Furthermore, the PoA also explicitly makes reference to INTERPOL as the preferred channel for tracing of SALW. This approach differs from the Firearms Protocol, which refers to the Organized Crime Convention as a possible legal basis for any type of cooperation in criminal matters, including for the purpose of firearms tracing. States further commit to ratify and accede to the adopted UNTOC and existing anti-terrorism instruments, and to cooperate also with civil society on education and awareness-raising.
 

Governing mechanism

The governing body for the PoA and the ITI is the Biannual Meeting of States, supported by the United Nations on Disarmament Affairs (UNODA) as its Secretariat.

Statement of purpose (Preamble)

To prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects through:

  • Measures at national, regional and global level to reinforce and further coordinate efforts to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects;
  • Measures to prevent, combat and eradicate illicit manufacturing of and trafficking in small arms and light weapons;
  • Emphasis on the regions of the world where conflicts come to an end and where serious problems with the excessive and destabilizing accumulation of small arms and light weapons have to be dealt with urgently;
  • Mobilizing political will and to raise awareness of the character and seriousness of the interrelated problems associated with the illicit manufacturing of and trafficking in these weapons;
  • Promoting responsible action by States with a view to preventing the illicit export, import, transit and retransfer of small arms and light weapons.

Preventing, combating and eradicating the illicit trade in small arms and light weapons in all its aspects

At the national level

  • To put in place, where they do not exist, adequate laws, regulations and administrative procedures to exercise effective control over the production of small arms and light weapons within their areas of jurisdiction and over the export, import, transit or retransfer of such weapons in order to prevent illegal manufacture of, and illicit trafficking in, small arms and light weapons, or their diversion to unauthorized recipients.
  • To adopt and implement, in the States that have not already done so, the necessary legislative or other measures to establish as criminal offences under their domestic law the illegal manufacture, possession, stockpiling and trade of small arms and light weapons within their areas of jurisdiction in order to ensure that those engaged in such activities can be prosecuted under appropriate national penal codes.
  • To establish or designate national points of contacts;
  • To ensure that manufacturers apply appropriate marking, which should be unique, identify the country of manufacture and provide information that enables the identification of the manufacturer and serial number in order to trace each weapon.

At the regional level

  • To establish or designate, as appropriate, a point of contact within sub regional and regional organizations to act in liaison on matters relating to the implementation of the Programme of Action.
  • To encourage negotiations, where appropriate, with the aim of concluding relevant legally binding instruments aimed at preventing, combating and eradicating the illicit trade in small arms and light weapons in all its aspects, and where they do exist to ratify and fully implement them.

At the global level

  • To cooperate with the United Nations system to ensure the effective implementation of arms embargoes decided by the United Nations Security Council in accordance with the Charter of the United Nations.
  • To request the Department for Disarmament Affairs to collate and circulate data and information provided by States on a voluntary basis and inclusion of national reports on implementation by those States in the Programme of Action.
Table 4 Key provisions of the UNPoA
 

International Tracing Instrument

 

Background

The International Tracing Instrument (ITI) is the other instrument developed under the auspices of the Programme of Action in 2005 also as a non-binding instrument. The ITI was developed because, as its preamble notes, " the tracing of illicit small arms and light weapons, including but not limited to those manufactured to military specifications, may be required in the context of all forms of crime and conflict situations". In this respect, the ITI broadens the focus of the PoA by considering also crime situations in which tracing is required to prevent and combat illicit trade, trafficking and diversion of weapons.

Scope of application and purpose

The main purpose of the ITI is to " enable States to identify and trace, in a timely and reliable manner, illicit small arms and light weapons", as well as to " promote and facilitate international cooperation and assistance in marking and tracing and to enhance the effectiveness of, and complement, existing bilateral, regional and international agreements to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects" (Article 1).

Key provisions

The ITI builds on the pre-existing Firearms Protocol and PoA and provides a framework for cooperation to enable States to identify and trace illicit SALW in a timely and effective manner. The ITI focuses on the pre-requirements for effective tracing, namely marking and record-keeping, and provides several measures to enhance cooperation among States for tracing:

  • It reinforces existing marking requirements contained in the Firearms Protocol (including the import marking requirement) and in the PoA and provides technical details on methods and marking criteria;
  • It provides details on the type of information and records on SALW that States should maintain manufacturing records for at least 30 years, and keep records on international transfers for at least 20 years;
  • It sets out several good practices to facilitate cooperation in tracing that recall the measures for mutual legal assistance set out in UNTOC, such as for example: a commitment to acknowledge the receipt of a tracing request, and to respond in a timely manner; to respect restrictions placed under tracing requests;
  • The ITI also provides detailed guidance on the information that should be contained in a tracing request.

The ITI is a complementary technical tool developed to complement and reinforce the PoA and the Firearms Protocol, as indicated in its preambular part: "This instrument is complementary to, and not inconsistent with, the existing commitments of States under relevant international instruments, including the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime".

Governing mechanism

The governing body for the PoA and the ITI is the Biannual Meeting of States, supported by the United Nations on Disarmament Affairs (UNODA) as its Secretariat.

General provisions (Article 1)

To enable States to identify and trace, in a timely and reliable manner, illicit small arms and light weapons.

Definitions (Article 2)

  • Small Arms and Light weapons
  • Tracing
  • Illicit

Marking (Article 3)

  • Choice of methods for marking small arms and light weapons is a national prerogative.
  • All marks shall be on an exposed surface, conspicuous without technical aids or tools, easily recognizable, readable, durable and, as far as technically possible, recoverable.

Record-keeping (Article 4)

  • Choice of methods for record-keeping is a national prerogative.
  • Accurate and comprehensive records shall be established for all marked SALW within State territories and maintained to enable their competent national authorities to trace illicit SALW in a timely and reliable manner.

Cooperation in tracing (Article 5)

  • Choice of tracing systems is a national prerogative
  • States shall ensure capacity of undertaking traces and responding to tracing requests in accordance with the ITI

Tracing requests (Article 5)

  • States may initiate a tracing request in relation to SALW found within its territorial jurisdiction considered to be illicit.

Responses to tracing requests (Article 5)

  • States will provide prompt, timely and reliable responses to tracing requests made by other States.
  • Commitment of receiving States to acknowledge receipt of the tracing request within a reasonable time.
Table 5 Key provisions of the ITI
 
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