This module is a resource for lecturers
Multilateral and Regional instruments
The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Goods and Technologies (WA) was established in 1995 between 41 arms supplying States to increase greater transparency and responsibility in transfers of conventional arms and dual-goods and technologies. The WA's objective is " to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations" (Final Declaration, 1995). It complements and reinforces the existing control regimes for weapons of mass destruction and their delivery systems, as well as other internationally recognised measures designed to promote transparency and greater responsibility, by focusing on the threats to international and regional peace and security which may arise from transfers of armaments and sensitive dual-use goods and technologies where the risks are judged greatest.
The key commitment under the Arrangement is that arms suppliers agree to prevent the destabilising accumulation of weapons, including SALW/firearms. Signatories have the autonomy to decide whether to deny a transfer of weapons but there is a set of criteria against which such decisions are judged. Such criteria are, for example, contained in the Best Practice Guidelines for Export of Small Arms and light Weapons of 1998 and 2002 . Furthermore, States are required to report any transfers and denials of listed items, which are, amongst others, small arms and light weapons and related ammunition.
The first relevant document adopted at Pan African level in this field dates back to 2000 with the Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons (Bamako Declaration), which opened the path for the adoption of several legally binding instruments at sub-regional level. The Ministerial Conference of the Organization of African Unity has initiated the discussions for the adoption of the Bamako Declaration with the view to stop SALW from falling into the hands of " non-state rebel actors, ethnic militias, criminal gangs and terrorist groups in the African continent." The Declaration proclaims that to promote peace, security, stability and sustainable development on the continent, it is vital to address the problem of the illicit proliferation, circulation and trafficking in SALW in a comprehensive, integrated, sustainable and efficient manner. States agree to achieve their goals by enhancing their capacity to identify, seize and destroy illicit weapons and to put in place measures to control the circulation and possession of SALW, and adopt national and regional programs for action aimed at preventing, controlling and eradicating the illegal proliferation of SALW in Africa.
The Economic Community of Western African States (ECOWAS) has adopted a Convention on Small Arms and Light Weapons, Their Ammunition and Other Related Materials on 14 June 2006, which entered into force on 29 September 2009 (ECOWAS Convention). The ECOWAS Convention has a regional scope and is legally binding on the parties to it. Its origins are linked to the ECOWAS Moratorium on the Importation, Exportation and Manufacture of Light Weapons of 1998, which was limited in time and political engagement (Berkol, 2007). The process of transformation of the Moratorium into a legally binding document was the result of the joint efforts between civil society, national institutions and several external actors, including the European Union, Canada and Switzerland (Berkol, 2007).
The ECOWAS Convention has key provisions relating to transfer, manufacture, civilian possession, state-owned weapons, law enforcement, and institutional arrangements. In relation to transfer, there is a general prohibition on the transfer of weapons with limited exceptions to this; for example, in relation to national defence and security needs. The Convention establishes requirements for marking and recording of weapons that are lawfully transferred under an exception.
Member States are also required to control the manufacture of weapons, which includes listing and registering manufacturers and sharing the information with ECOWAS Member States. The Convention also requires that State parties prohibit the possession, use and sale of light weapons by civilians, and that the possession, use or sale of small arms by the same is regulated. Moreover, State parties need to establish systems of stockpile management and safe storage of state-owned weapons.
In relation to law enforcement the Convention requires that State parties review their legislation and cooperate with other ECOWAS States to strengthen border controls. To ensure that the aims of the Convention are met States are required to set up and fund institutional arrangements to implement the Convention. The implementation of the Convention is supported by a regional institution - the ECOWAS Commission - which has established a separate Small Arms Unit to assist Member States in meeting their obligations under the Convention.
The Protocol on the Control of Firearms, Ammunition and Other Related Material in the Southern African Development Community Region (SADC Protocol) was adopted on 14 August 2001 and entered into force on 8 November 2004. The SADC Protocol is a regional convention that is legally binding on the parties to it. Many of its provisions draw upon the text of the Firearms Protocol and contain similar language. For example, " illicit trafficking" is defined as the import, export, acquisition, sale, delivery, movement or transfer of firearms, ammunition, and other related materials from, to, or across the territory of a State party without the authority of States parties concerned (Article 1). This follows very closely the definition of " illicit trafficking" in the Firearms Protocol (Article 3). The SADC Protocol covers under its scope, firearms, ammunition and other related material, which refers to any components, parts or replacement parts of a firearm that are essential to the operation of the firearm (Article 1), and it refers to the term " firearms", as opposed to " small arms".
The main objective of the Protocol is to prevent, combat and eradicate the illicit manufacturing of firearms, ammunition and other related material, and their excessive and destabilizing accumulation, trafficking, possession and use in the Southern African region.
The Protocol envisages the establishment of an adequate legal framework by State parties to control the manufacturing, possession, and use of firearms, ammunition, and related materials. The Protocol foresees the seizure, confiscation and forfeiture of any firearm, ammunition, and other related materials manufactured without adequate authorization. It is important to mention that the Protocol also contains an obligation for the State parties to ensure legal uniformity in the sphere of sentencing (Article 5(3)(n)).
The SADC Protocol differs from the Firearms Protocol in one important aspect by including regulations on the control over civilian possession of firearms. It refers to the establishment of national procedures and criteria for issuing and withdrawing of firearms licences, deploying and maintaining electronic databases of licensed firearms, firearms owners and commercial companies trading in firearms. Furthermore, the Protocol envisages regulation of state-owned firearms and firearms transfers, and the establishment of an institution to oversee its implementation. Today, the Southern African Regional Police Chiefs Cooperation Organization carries out this task.
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 and entered into force on 5 May 2005. The provisions of the Nairobi Protocol are comprehensive and legally binding on the parties to it.
The Protocol is a regional instrument that considers the experiences of the SADC Protocol and prescribes specific actions, which the State parties need to implement (Dye, 2009). There are several differences in the scope of the two instruments. The Nairobi Protocol contains in its title a reference to " small arms and light weapons" (SALW) and in Article 1 provides definitions for these terms. On the other hand, the Nairobi Protocol also provides a definition for " firearms" and explicitly states that " firearms" are included within the scope of " small arms" (Article 1). Compared to the SADC Protocol, the Nairobi Protocol contains definitions of " ammunition" and " other related materials" but does not extend the implementation of all its provisions to them. For example, parts and components are only referenced in connection with " illicit manufacturing", whereas ammunition is only covered in Article 1 " Definitions".
The Nairobi Protocol regulates manufacturing, possession and use of SALW, marking and record-keeping. It also defines obligations of State parties towards state-owned weapons, and contains detailed provisions on SALW transfers and brokering. The provisions of the Nairobi Protocol are supplemented with Best Practice Guidelines, which provide detailed policy and practice recommendations to assist states in the process of the Protocol's implementation. The Regional Centre for Small Arms and Light Weapons (RECSA) is responsible for the coordination and oversight of its implementation.
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) is a sub-regional, legally binding instrument covering the Economic Community of Central African States (ECCAS), which was adopted in 2010 and entered into force on 8 March 2017.
The scope of the Convention is larger when compared with the SADC and Nairobi Protocols and includes small arms, light weapons, their ammunition, as well as all parts and components that can be used not only for their manufacture, but also for their repair and assembly. The definitions of the Kinshasa Convention follow closely the provisions of the Firearms Protocol and thus define " illicit trafficking" as the import, export, acquisition, sale, delivery, movement or transfer of small arms and light weapons, their ammunition and parts and components that can be used for their manufacture, repair and assembly from across the territory of one State party to that of another if any one of the State parties concerned does not authorize it in accordance with the terms of this Convention, or if the weapons and ammunition are not marked in accordance with this Convention.
The Kinshasa Convention contains comprehensive regulations on transfers of SALW compared to the SADC and Nairobi Protocols. For example, Article 5 (3) envisages regulating the submission of requests for transfers and prescribes its content, which at the very least shall include the quantity, nature and type of weapon, including all the information concerning markings, in accordance with this Convention. Such information shall include: name, address and contact details of the supplier and his representative; name, address and contact details of the companies and individuals involved in the transaction, including brokers; number and time frame of shipments, routes, transit locations, type of transport used, companies involved in importing, forwarding agents and relevant information about storage conditions; end-user certificate; description of the end use of the SALW, ammunition and all parts and components that can be used for their manufacture, as well as the designation of where they are to be loaded and unloaded. The Convention also foresees the prohibition of transfers to non-state armed groups and the establishment of a harmonized regime for end-user certificates at the sub regional level.
The Kinshasa Convention regulates in the other eight chapters the possession of SALW by civilians, the manufacture, distribution and repair, marking and tracing, registration, collection and destruction of SALW. The Convention envisages stringent border control measures and provides for the establishment of a precise and limited number of points of entry of SALW. Furthermore, it provides for the establishment and maintenance of national and regional electronic databases on SALW, as well as for a sub regional electronic database of weapons used in peacekeeping operations. Another key provision is on the links between corruption and other forms of criminality, which foresees the adoption of appropriate measures to establish or strengthen cooperation between the administrative departments concerned and the security forces to prevent and combat corruption, money-laundering, terrorism and drug trafficking associated with the illicit manufacturing of, trafficking in, trade, possession and use of SALW.
The Secretary-General of ECCAS ensures the follow-up and coordination of all activities carried out under the Convention, whereas the Secretary-General of the United Nations convenes a Conference of the Parties (COP) to the Convention one year after its entry into force. The first COP was held from 11-13 June 2018 in Yaoundé, Cameroon. The United Nations Regional Centre for Peace and Disarmament in Africa produced an Implementation Plan for the Convention, which includes a series of activities structured around the chapters and articles of the Convention.
The American continent has been in the forefront in adopting regional and sub-regional responses to the problem of illicit firearms trafficking and their impact on crime and violence. There are a few legally binding instruments, and several non-binding ones, which have been adopted at regional and sub-regional level, and which were used as a basis to negotiate subsequent global instruments like the Firearms Protocol.
The Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials (CIFTA) was adopted on 14 November 1997 and entered into force on 1 July 1998. It was the first legally binding regional instrument that focuses explicitly on regulating SALW and served as a model for the development and adoption of the Firearms Protocol. The purpose of the Convention is to prevent, combat, and eradicate the illicit manufacturing of, and trafficking in, firearms, ammunition, explosives, and other related materials. It establishes a framework for " strengthening and harmonizing arms export controls and procedures; increasing cooperation, information-sharing, and the provision of technical and legal assistance between national law enforcement agencies" (Schroeder, 2003).
The CIFTA Convention envisages for State parties to adopt legislative measures, including the establishment as criminal offences the illicit manufacturing of, and trafficking in, firearms, ammunition, explosives, and other related materials, and the inclusion of participation in, association with, or conspiracy to commit, attempts to commit, and aiding, abetting, facilitating, and counselling the commission of these offences. The Convention contains a requirement on marking of firearms, which has been adopted by the Firearms Protocol, and foresees specifically the marking of imported firearms. As with the other regional instruments, CIFTA envisages regulations on the establishment of a system for export, import and transit controls, exchange of information and cooperation.
The CIFTA Convention was further integrated, in 1999, by a second Inter-American Convention on Transparency in Conventional Weapons Acquisitions, which entered into force in 2002, and by a number of Model Regulations to further detail and develop the provisions contained in the Convention. Such Model Regulations are adopted by Member States as non-binding recommendations of the CIFTA Consultative Committee. The Convention was used for the drafting of several model laws on criminal offences related to illicit manufacturing and trafficking; confiscation and asset forfeiture; marking and tracing of firearms; control of the international movement of firearms; control of brokers of firearms, their parts and components, and ammunition; strengthening controls at export points for firearms, ammunition, explosives, and other related materials; and controlled delivery of firearms:
- Model Regulations for the Control of the International Movement of Firearms, Their Parts and Components and Ammunition, of 2003;
- Amendments to the Model Regulations for the Control of the International Movement of Firearms, Their Parts and Components and Ammunition: Broker Regulations of 2003;
- Guidelines for Controlling and the Security of Man-Portable Air Defence Systems (MANPADS) of 2005;
- Model Legislation on the Marking and Tracing of Firearms of 2007;
- Proposed Model Legislation and Commentaries for Strengthening Controls at Export Points for Firearms, Ammunition, Explosives and Other Related Materials, of 2008;
- Draft Model Legislation and Commentaries on Legislative Measures to Establish Criminal Offences in Relation to the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives and Other Related Materials of 2008;
- Model Legislation and Commentaries in Relation to Confiscation and Forfeiture of Firearms, Ammunition, Explosives, and Other Related Materials.
Furthermore, the Organization of American States Firearms Standards on Marking and Record-keeping were created to provide non-binding recommendations for the implementation of the relevant Convention's provisions.
The Andean Community of Nations adopted:
- The legally binding Andean Chart for Peace and Security and Control of the Expenditure on Foreign Defence (Lima Commitment) of 2002;
The Andean Community Decision 552 containing the Andean Plan of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects of 2003.
The Caribbean Community and Common Market (CARICOM) adopted in 2011 a political CARICOM Declaration on Small Arms and Light Weapons .
The Southern Common Market (MERCOSUR) adopted several Council Decisions, and in 2004 the legally binding:
- Southern Cone Presidential Declaration on Combating the Illicit Manufacture and Trafficking in Firearms, Ammunition and Related Materials of 1998 ;
- Common Market Council (CMC) Decision No. 7/98: Joint Register Mechanism of Consumers and Sellers of Firearms, Ammunition, Explosives, and Other Related Materials for MERCOSUR of 1998 ;
- CMC Decision No. 15/04: Memorandum of Understanding for Information Exchange on the Manufacture and the Illicit Traffic of Firearms, Ammunition, Explosives and Other Related Materials.
The Central American Integration System (SICA) adopted in 2005 the Code of Conduct of Central American States on the Transfer of Arms, Ammunition, Explosives and Other Related Material .
The League of Arab States (LAS) has agreed upon a Common Position at the 2001 UN Conference on the Illicit Trade on SALW and worked at national and regional level on the implementation of the UN PoA on SALW. As a result of this process, the Council of Arab Interior Ministers adopted in the following year in Tunisia the Arab Model Law on Weapons, Ammunitions, Explosives and Hazardous Material (2002). The LAS has also adopted a Ministerial Council Resolution 6625 on Arab Coordination for Combatting the Illicit Trade in SALW on 4 March 2006.
Asia and the Pacific
The South Pacific Chiefs of Police Conference in Nadi, Fiji in 2000 adopted the draft Legal Framework for a Common Approach to Weapons Control (Nadi Framework), which was endorsed by the Forum Regional Security Committee. The Nadi Framework provides recommendations to member countries, which they can adopt in their legislation related to a common approach to weapons control. The Nadi Framework was used as the basis for the development and adoption of the Weapons Control Bill (Bill) in 2003, subsequently updated in 2010 with the inclusion of provisions on arms brokering.
The underlying principles of the Bill include confirmation that the possession and use of weapons is a privilege that is conditional on the overriding need to ensure public safety, and improved public safety through establishment of strict controls on the possession and use of weapons. Based on these principles, the Bill sets specific objectives: " to require each person who possesses or uses a weapon to have a genuine reason for possessing or using the weapon; and to provide strict requirements that must be satisfied for the importation, possession and use of firearms". The implementation of these principles and objectives is set in the main provisions of the Bill on prohibition of the import, export, possession and use of the prohibited weapons, through the establishment of a system for the registration of firearms, and the licensing of people who deal in weapons or have a genuine reason for possessing and using a weapon.
European Union regulatory framework
There is a broad range of European responses to illicit manufacturing, use and trafficking of firearms from legislation of the European Union (EU) to the Organization for Security and Co-operation in Europe (OSCE). The EU is one of the most important actors in the global efforts to counter the uncontrolled proliferation and accumulation of SALW, and since 1990s has embarked on the development of comprehensive policy in this domain (Poitevin, 2013). The EU is a party to the Firearms Protocol since 2014.
In 1997, the Council of the European Union adopted the European Union Programme for Preventing and Combating Illicit Trafficking in Conventional Weapons, followed by the adoption in 1998 of the Joint Action on European Union on the European Union's contributions to combating the destabilising accumulation and spread of small arms and light weapons. In 2002, the Council of the European Union adopted another Joint Action 2002/589/CFSP on the European Union's contribution to combating the destabilising accumulation and spread of small arms and light weapons.
One of the aspects of the external dimension of EU security is based on the EU Strategy to combat illicit accumulation and trafficking of SALW and their ammunition (2005). The Strategy and its Action Plan have identified four areas of intervention: the international level; the regional level; the bilateral level; and the national level. At the international level the EU aims to promote worldwide the ratification and implementation of international legal instruments, such as ATT and UNFP, offer technical and financial assistance to third States for the implementation of international instruments, and promote a world mechanism for tracing illicit weapons. At the regional level, the EU has launched several initiatives in different regional contexts relating to stockpiling, disarmament, seizure and destruction of firearms. At the bilateral level, the EU promotes several commercial and economic agreements with third States which contain some specific clauses on arms trade. Finally, at national level, the EU requires its Member States to transfer SALW with third States based on high common standards, the devising of mechanisms for exchange of information on trafficking networks, and the development of policies for actively combating such networks.
In 2018, the European Commission and the High Representative of the Union for Foreign Affairs and Security Policy updated the Strategy and adopted a Joint Communication to the European Parliament and the Council on elements towards an EU Strategy against illicit Firearms, Small Arms and Light Weapons and their Ammunition "Securing Arms, Protecting Citizens".
Apart from its Strategy, the EU has adopted several types of legal acts, which regulate various firearms related aspects and transpose the obligations under the international instruments into EU legislation. These include the Directive 91/477/EEC on control of the acquisition and possession of weapons, amended in 2008 and 2017, the Regulation 258/2012 implementing Article 10 of the United Nations' Firearms Protocol, and establishing export authorization, and import and transit measures for firearms, their parts and components and ammunition. The Commission Implementing Regulation 2015/2403 establishes common guidelines on deactivation standards and techniques for ensuring that deactivated firearms are rendered irreversibly inoperable, and two Council Common Positions on defining common rules governing control of exports of military technology and equipment and of arms brokering. The legal instruments have brought a decisive improvement in several areas of the EU legal framework to detect, investigate and prosecute the trafficking in illicit firearms. They have strengthened legal measures aimed at effectively tracing illicit firearms and established an effective legal basis for a common regulation of 'converted firearms' in the EU by introducing innovative requirements and obligations on deactivated firearms.
The Organization of Security and Co-operation in Europe (OSCE)
The participating States in the OSCE have agreed upon two main documents related to control of SALW and have developed handbooks with best practices for their implementation. The OSCE Document on SALW, adopted in 2000, contains concrete norms, principles and measures, which represent commitments for the participating States to reduce the accumulation and uncontrolled spread of SALW. The OSCE Document on Stockpiles of Conventional Ammunition was adopted in 2003 to address the security risks of " stockpiles of conventional ammunition, explosive material, and detonating devices in surplus and/or awaiting destruction in the OSCE area". Both documents envisage assistance mechanisms to support requesting participating States in addressing these challenges. The scope of both documents does not include arms or ammunition in civilian possession.