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Harmonization of national firearms legislation with international firearms instruments

 

National firearms regulations have undergone substantial changes since 1997 when the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials (CIFTA) was adopted as the first legally binding regional treaty that focuses explicitly on regulating firearms. It was followed by the adoption in 2001 of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (Firearms Protocol), supplementing the United Nations Convention against Transnational Organized Crime (UNTOC), which was the first global legally binding instrument to establish a framework for countering illicit manufacture of, and trafficking in, firearms from the perspective of criminal justice.

In parallel to the development of the Firearms Protocol, the international community worked  on an instrument which focuses on firearms from a disarmament perspective, and adopted in 2001 the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons (PoA). The other two global instruments regulating firearms are the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons (ITI) from 2005, and the Arms Trade Treaty (ATT) from 2013.

Several regional organizations followed suit with the adoption of regional instruments regulating various aspects of firearms. In Africa, the Economic Community of Western African States (ECOWAS) adopted on 14 June 2006 a Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials; the Southern African Development Community adopted on 14 August 2001 the Protocol on the Control of Firearms, Ammunition and Other Related Material in the Southern African Development Community Region (SADC Protocol); the Economic Community of Central African States (ECCAS) adopted in 2010 the Central African Convention for the Control of Small Arms and Light Weapons, Their Ammunition and All Parts and Components That Can Be Used for Their Manufacture, Repair and Assembly (Kinshasa Convention); and the Nairobi Protocol for the Prevention, Control and Reduction of Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa (Nairobi Protocol) was adopted on 21 April 2004.

In Europe, the Organization for Security and Co-operation in Europe (OSCE) agreed with consensus the adoption of the OSCE Document on SALW and the OSCE Document on Stockpiles of Conventional Ammunition. The European Union has adopted several Directives and Regulations on firearms and developed programmes and strategies to combat illicit accumulation and trafficking in firearms and their ammunition. Additional information about the scope of these instruments is provided in Module 5 on International Legal Frameworks.

The overview above shows that in a period of circa fifteen years the international community has focused its attention on regulating various aspects of the firearms control at global level and these regulations have been further transposed into several regional instruments. These developments have created the obligation for harmonization of national firearms legislation with the provisions of the legally binding treaties, which include the Firearms Protocol and the ATT at a global level, and the ECOWAS Convention, SADC Protocol, Nairobi Protocol, Kinshasa Convention, and CIFTA at a regional level. The PoA, ITI and the OSCE Documents are not of legally binding nature and carry a political commitment for the implementation of their provisions by the states that negotiated them.

As illustrated in Module 5, the binding nature of an international treaty is established through a State's consent to be bound by its provisions. Through a formal adherence process, which can be the signature followed by the ratification, or the direct accession to the legally binding instrument, Member States commit to abide by its mandatory provisions. International criminal law instruments, such as UNTOC and the Firearms Protocol, and to some extent the Arms Trade Treaty, create legal obligations and commitments upon its State parties that are implemented through domestic legislation.

The transposition of the norms from the legally binding instruments on firearms into domestic legislation has several stages: comparative review of the existing firearms legal framework for the purpose of identifying gaps in the regulations with regard to the international instruments; drafting amendments to the existing firearms legislation or drafting new legislation, if such legislation did not exist previously; adoption of the new acts by the legislature; and development of subsidiary legislation for the implementation of the new domestic legislation on firearms. An example for comparative legislative analysis is the research undertaken by the European Commission through an impact assessment on the implementation by the Member States of the European Union (EU) of article 10 of the United Nations Firearms Protocol. Based on the initial analysis, draft legislation is developed and subsequently adopted; thus, the European Parliament and the European Council adopted Regulation No. 258/2012 on implementing Art. 10 of the Firearms Protocol, the provisions of which are directly applicable in all EU Member States.

In practice, it is not always easy and straight forward to find all norms pertaining to the national firearms control regime since norms are often scattered and spread among different pieces of law and numerous secondary laws and regulations. This is, on the one hand, due to the multi-disciplinary nature of the subject matter, which involves a variety of entities and actors leading often to sectoral interventions, and, on the other, to the existence of multiple international and regional instruments adopted at different times and in different contexts. In practice, many countries have quiet outdated laws on firearms, which are partially updated through special norms. Sometimes the firearms control regime of a country is found to be regulated almost entirely through secondary norms, such as ministerial decrees and regulations, without going through the legislative body. While secondary norms have the advantage of being more easily amended and adapted to emerging needs, the absence of a legal regime based on norms adopted with the force of law also often represents an impediment for effective enforcement. Uruguay, for example, lacked a comprehensive firearms legislation with most of the firearms control regime scattered among several dozens of ministerial decrees, until in 2014 it adopted a law that introduced, amongst others, specific criminalization provisions for illicit trafficking and several other broader regulatory measures (Law 19.247, 2014).

 
Next:  Assistance for development of national firearms legislation
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