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  This module is a resource for lecturers  

 

Assistance for development of national firearms legislation

 

The harmonization of domestic firearms legislation with the global and regional instruments has been a slow process, and the countries have been confronted with various challenges posed by the technical nature of some of the norms. Several provisions contained in international instruments, such as the Firearms Protocol or the Arms Trade Treaty, are not exhaustive but leave ample room for national legislators to fill existing gaps or to interpret the way in which certain requirements can be implemented. For that reason, international organizations have developed technical tools to assist Member States and guide policymakers, legal advisors and legislators who wish to review or amend their domestic legal framework, or adopt new legislation in a manner consistent with these instruments. The United Nations Office on Drugs and Crime (UNODC) has developed legislative and technical guidelines as well as model laws and specialized publications to support the implementation of both UNTOC and its the Firearms Protocol, which are designed to be adapted to the needs of each State, whatever its legal tradition and social, economic, cultural and geographic conditions. Several of these tools are introduced in Module 5. The present Module provides some additional details and specific examples of the guidance provided through these tools to national legislators and policymakers.

 

UNODC Model Law (2014)

The UNODC Model Law against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition (Model Law) was developed in response to the request of the United Nations General Assembly to the Secretary-General to promote and assist the efforts of Member States to become party to implement UNTOC and the Firearms Protocol. The Model Law is also a response to the specific technical assistance needs identified by Member States in order to harmonize domestic legislation with the requirements of the Convention and the Protocol. Each chapter and Model Law include a commentary that explains the requirements of the Firearms Protocol and indicates the source of the provision, and the mandatory or optional nature of the referenced provision within the Protocol. Thus, for example, Chapter IV of the Model Law is devoted to the marking requirements in the Firearms Protocol. It provides the following language for regulating marking of firearms at the time of manufacture in Article 7 of the Model Law, which can be adopted in national legislation:

1. Every manufacturer of firearms shall apply an identification mark to each firearm, at the time of manufacture, in accordance with paragraph 2 of this article.

2. The unique identification mark applied to every firearm manufactured in [name of State] in accordance with paragraph 1 of this article shall indicate: (a) that [name or initials of State] is the country of manufacture; (b) the name of the manufacturer; and (c) the unique serial number.

The provisions of the Model Law should be interpreted and reviewed in conjunction with the UNODC Legislative Guide in order to gain better understanding about the available options open to the national legislator. The Model Law is not meant to be incorporated as a whole and a careful review of the whole legislative context of a given State should be undertaken. In that respect, the Model Law cannot stand alone and domestic legislation implementing the provisions of the Convention is essential for it to be effective. Where relevant and useful, the Model Law also provides an additional part containing optional model provisions that address related areas not explicitly included in the Protocol, but relevant to its implementation. Examples of this type include the additional provisions on the establishment of a licensing authority, or the provisions regarding licensing criteria, or reasons for the suspension or retreat of the licenses or authorizations, which are not mentioned explicitly as requirements by the Protocol, but whose existence are presupposed by it (Articles 61-70 of the Model Law).

 

Model legislation on the marking and tracing firearms under the Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition and Other Related Materials (CIFTA Convention) (2007)

In 2007, the Consultative Committee approved model legislation on the implementation of the CIFTA Convention with specific focus on marking of firearms and their tracing. The Model legislative provisions expand the content of the Convention and provide more detail and guidance on the technical aspects related to marking. It stipulates for example that every firearm shall be legibly and conspicuously marked in a manner that is not susceptible of being readily obliterated, altered, or removed. Furthermore, it specified the obligations for marking of manufactured firearms, which shall bear marking that includes the name of the manufacturer, the place of manufacture and the serial number. The placement of additional markings, where possible, is also intended to assist in the tracing process, including information about the model, caliber or gauge. In addition, the model legislation sets requirements about the place of the markings on the firearm by specifying that the mandatory part to be marked is the frame or receiver, and, wherever possible, on the other components of the firearm, such as the barrel or slide.

 

Arms Trade Treaty: Model Law for Pacific States (2014)

The Government of New Zealand, together with the Small Arms Survey, developed a model law for the implementation of the Arms Trade Treaty to assist the Pacific States in the process of ratification of the instrument and harmonization of their domestic legislation. The model law is a comprehensive document, which contains seven parts and includes an example of a list of controlled goods as well as an annex with model regulations, which are aimed at implementing the primary legislation.

The Model Law provides detailed information about the definitions to be used and their interpretation, a detailed list of provisions on export licensing, and the risk assessment to be conducted by the national authorities. It continues with provisions on import licensing, provides examples of how to regulate transit and transhipment, and provisions for registering brokers and licensing brokering activities. The Model Law deals also with topics related to record-keeping by state authorities, brokers and other actors engaged in importing and exporting arms.

 

Legislative and technical guidance

Several organizations have engaged in providing assistance to the implementation of the legal instruments through legislative and technical guides that can be used in conjunction with the development of national legislation. This section provides a short overview of their scope and application.

UNODC Legislative Guide (2004)

The Legislative Guide for the Implementation of 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 was developed in 2004 shortly after the introduction of the Convention and its Protocols to help in the interpretation and understanding of the four instruments. It is divided by instruments and has several substantive chapters: scope and technical provisions of the Protocol and its relationship with the Convention; definitions; control measures; substantive criminal law; and information exchange. Each chapter is prefaced by a brief description that summarizes the main points contained in it. Then the main articles of the Firearms Protocol are described in separate sections. The Guide provides an introduction for each provision, a summary of the main requirements, mandatory requirements, and optional measures including optional issues and information resources.

The Guide groups the Firearms Protocol's provisions into three categories: measures that are mandatory; measures that State parties must consider applying or endeavor to apply; and measures that are optional and thus bring to the attention of the drafters of national legislation that not all the provisions of the Protocol have the same level of obligation. For example, in reference to Article 8 of the Firearms Protocol, " Marking of firearms", the Guide has introduced this mandatory provision with an overview of the purpose for marking firearms - the unique marking of each firearm allows for its identification, supports the establishment of a record-keeping system, and assists in the tracing process of seized firearms.

The Guide provides a rationale of the importance of the requirement to provide marking information about the importing country, especially for firearms that have been in circulation for many years and explains that the import marking can expedite the tracing process by identifying the last country into which the firearm was imported and, where possible, the year of import. The Guide recommends also that the basic requirements to mark items be established by legislature in statutory provisions, whereas the authority to promulgate detailed specifications as to what the marking should consist of and how it should be done, could be delegated to officials if rules, specifications or other regulatory provisions are duly made, properly drafted and published. Such approach maintains the rule of law and principle of legality, while still allowing for technical adjustments to the requirements as new marking techniques are developed, and as different items that require marking are encountered.

The Guide states that in the case of import markings, the person who should be required to affix the markings is not specified, leaving legislators the option of imposing the requirement on the manufacturer, exporter or importer. Since the exporter is generally outside the jurisdiction of the legislature, legislation imposing the requirement on exporters would generally take the form of a provision prohibiting the entry of firearms unless appropriately marked prior to entry. Imposing the requirement on importers, who are within the jurisdiction of the legislature, would take the form of a requirement to mark appropriately at some time immediately after importation and an offence of not having done so within a set period. A combination of these two formulations may also be adopted, placing the onus on the importer to ensure markings are applied, but leaving the implementing provision flexible enough to allow the marking to be applied by the importer or the exporter.

The Legislative Guide has been widely used by Member States, scholars, and also by UNODC in support of its legislative assistance support provided to Member States. By way of example, in 2018, UNODC used the Legislative Guide in the process of providing assistance to Bosnia and Herzegovina for the development of national subsidiary legislation on marking imported firearms, which resulted in the adoption of two subsidiary acts.

UNODC Technical Guide (2011)

 The UNODC Technical Guide to implement the Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition (Technical Guide) was developed to provide practical and simple advice on steps that States can take to implement the provisions of the Firearms Protocol. The Technical Guide is intended to be of assistance to policymakers, law enforcement officials and practitioners involved in arms transfers and investigations and to persons engaged in developing control measures in implementing the Firearms Protocol and criminalizing the illicit manufacture of, and trafficking in, firearms. It contains chapters on the control measures that State parties need to implement to prevent the diversion of firearms into the illicit market. The aim of the Technical Guide is also to help States develop the capacity to respond proactively when diversion of firearms and ammunition occurs, to intervene in a timely and reliable manner, and to detect possible points of diversion to illicit channels. The Guide goes beyond the strict requirements of the Firearms Protocol and recommends that measures and policies be implemented which consider other regional and international small arms control instruments.

The Technical Guide, for example, contains information to assist State parties in developing harmonized measures and systems for marking, registration and tracing of firearms, and their parts and components to prevent illicit manufacturing and/or trafficking and diversion to the illicit market, thus implementing article 8 of the Firearms Protocol. It includes an overview of different methods of marking that can be utilized by States and types of marking that should be applied according to the Firearms Protocol at the time of manufacture, import and transfer from government stocks to civilian use, and for securing traceability of firearms. The Technical Guide provides detailed information about classical and security markings provided as well as instructions on possible locations for placing these markings, and the methods that can be utilized for marking. Various measures for preventing the removal and alteration of markings and the costs of marking, based on the techniques used, are also discussed. The Technical Guide also elaborates on the requirements under Article 9 " Deactivation" of the Firearms Protocol, and provides information about the organization of the deactivation process at a national level. It discusses various deactivation techniques and presents useful comparison between the different methods. The Technical Guide devotes chapter VI to the requirements for export, import and transit licensing, and provides information which assists States to better control the movement of firearms and ammunition and to minimize the risk of diversion.

UNDP's How to Guide Small Arms and Light Weapons Legislation (2008)

The United Nations Development Programme (UNDP) has developed a guide to support national authorities in the process of review and amendment of existing legislation with the goal to adopt an effective and comprehensive legal framework to regulate the various stages of the firearms' life-cycle, namely manufacturing, possession, transfer, and provisions on tracing. It contains important references on the process of reviewing the national regulations and the key factors that should be considered. It underlines the importance of information collection during this stage, of setting specific objectives and developing national policy on firearms, of engaging in a consultative process of relevant actors, and taking into consideration enforcement, training, awareness raising and communications. UNDP has also developed a How to Guide on the Establishment and Functioning of National Small Arms and Light Weapons Commissions (2008) for supporting the establishment of institutional frameworks to address the implementation of the SALW issues, including legislation, in a coordinated manner.

Best Practice Guidelines for the Implementation of the Nairobi Declaration and the Nairobi Protocol on Small Arms and Light Weapons (2005)

The Regional Centre on Small Arms and Light Weapons (RECSA) published the Best Practice Guidelines for the implementation of the regional instrument on firearms with the view to achieve harmonization across different national legislation. An important section of the Guide covers regulations concerning stockpile management, legal non-state possession, and regulations of firearms in state possession during peacetime. They take into consideration the diverse legal systems in the sub-region, and the different levels of capacity of law enforcement agencies, including their human capacity and technical resources. The aim is to establish minimum standards on stockpile management, record-keeping, marking, collection and disposal in the Member States. The Guidelines contain instructions on the offences that should be included in national legislation and provide useful formulations and examples.

Guide for the harmonization of national SALW legislation in West Africa (2010)

The United Nations Regional Centre for Peace and Disarmament in Africa (UNREC) assisted the ECOWAS Commission in the development of a guide for harmonizing the national SALW legislation of its Member States, which focuses on the implementation of the provisions of the ECOWAS Convention on Small Arms and Light Weapons, their Ammunition and Other Related Materials. It aims at introducing " a shared understanding of common principles for the control of small arms and light weapons posed by the Convention and to use harmonized language". The beneficiaries of the Guide are the institutions and officials of ECOWAS Member States who will oversee the harmonization of national legislation as well as various actors in activities related to firearms control. The guide identifies seven areas for legislative harmonization, which are linked to the operational areas of firearms control covered by the ECOWAS Convention, including definitions, transfers, manufacture, transparency and information exchange, operational mechanisms, institutional arrangements, and sanctions. The Guide contains recommendations dealing with the various functional aspects of controlling activities relating to firearms. These include discussions and comments to guide the national authorities in the process of implementing the Convention's requirements. The Guide makes a distinction between the provisions that should be implemented by the Member States, and those to be implemented by the ECOWAS Commission.

Best Practices for Effective Legislation on Arms Brokering (2016)

The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (Wassenaar Arrangement) 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". The Participating States in the Wassenaar Arrangement work on implementing national regulations to ensure that " these items do not contribute to the development or enhancement of military capabilities which undermine these goals, and are not diverted to support such capabilities". The Participating States meet regularly to discuss and adopt guidelines and best practices, which will guide their national authorities in achieving their objective. In this process they have adopted, among other guidelines, the Best Practices for Effective Legislation on Arms Brokering, which provide specific instructions on the definition to be used in national legislation for brokering activities, and the recommendations to regulate activities of negotiating or arranging contracts, selling, trading or arranging the transfer of arms and related military equipment. The Best Practices also envisage the establishment of a licensing system, or other form of control, by competent authorities, and enhanced co-operation and transparency through exchanging information on arms brokering activities.

MOSAIC (2018)

The United Nations in collaboration with numerous partners have developed the Modular Small-arms-control Implementation Compendium (MOSAIC) with the aim to provide practical guidance on establishing effective controls over SALW, during the course of their lifecycle, and thus prevent their diversion into the illicit market, based on the provisions contained in the existing international instruments, in particular the Firearms Protocol, the ATT, the PoA and the ITI. The Compendium contains six series of notes, which do not carry any legal weight but combine the best small arms expertise and the highest common denominator resulting from a joint reading of the diverse international instruments, with a focus on practical implementation. The notes contained in Series 03 on legislative and regulatory issues are of relevance for this Module. They provide guidance on establishing national controls over manufacture, international transfer, end-user and end-use of internationally transferred SALW, civilian access and the national coordinating mechanisms on SALW.

 
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