After almost ten years of utter failure, the Arms Trade Treaty (ATT) has shifted its focus. Once touted as the United Nation’s (UN) crown jewel in preventing and eradicating the illicit trade and diversion of conventional arms, last week’s Ninth Conference of States Parties (CSP9) served as an almost singularly focused attack on the global firearms industry.
It was remarkable shift. The ATT’s annual conferences have historically focused solely on procedural issues. This year, however, under the guise of protecting human rights, States Parties to the treaty utilized the week’s discussions on ways to incorporate the articles of the UN Guiding Principles on Business and Human Rights (UNGP) into the treaty.
Under the 31 principles contained in the UNGP, which were unanimously adopted by the United Nations Human Rights Council in 2011, businesses have a responsibility to respect human rights and, if violated, victims are to be afforded a remedy. In the context of the ATT, the argument is that violations of human rights through the use of firearms are so foreseeable that any time one occurs those involved in the international trade of that firearm, from the manufacturer all the way down to the shipping companies, brokers, and payment processors, bears liability.
The premise for this liability is a term coined in the UNGP – Human Rights Due Diligence (HRDD). Under the UNGP, HRDD is merely a recommendation, whereas once incorporated into the ATT it can become a legally binding requirement. Furthermore, while the 113 States Parties to the ATT only account for 38% of global arms exports and 35% of global imports, the mere existence of the treaty raises the argument for the anti-firearm community that its legally binding terms extend beyond its States Parties to the global community as whole as an international norm. For U.S. industry what this means is that any incorporation of HRDD into the ATT would not only create the possibility of liability through international channels, but also stifle the involvement of lawsuit-weary shipping companies and payment processors involved in the arms transfer process.
Notably, as arguments of support for incorporation of the HRDD into the ATT were made at CSP9, the criminal misuse of firearms was never acknowledged. Instead, justification for liability would rest solely on a violation of International Human Rights, International Humanitarian Law, or any contribution towards human suffering or gender-based violence committed with a firearm.
Also notable was the recognition and dismissal of the idea that the ATT neither has the authority to create such a standard nor that State Parties themselves are required to conduct their own due diligence analysis before authorizing a transfer of conventional arms under the existing terms of the treaty. Instead, the argument was made that government authorization was not enough to shield the industry from liability.
It is no surprise that this effort was led by Mexico, who, being unable to control crime within its border, has placed the blame for any crime committed with a firearm almost singlehandedly on the United States. Accordingly, for them, creating this liability at the international level is just another step in bolstering their attempts to argue in our courts that the U.S. firearms industry is both responsible and liable of all their problems.
A casual follower of the ATT will likely note that HRDD is not contained in the final report of CSP9 and wonder why, despite this oversight, this was not a win. We can assure you it was not. One must remember that when it comes to all things UN, this is a game of chess, not checkers. Creating a new liability standard requires a foundation, and CSP9 was simply the groundwork for it. The idea was raised and the necessary support was generated. Accordingly, all that was needed in the final report was a reference to build from, and one need not look past paragraph 22 to find it.
Not only does that paragraph “welcome” the UNGP and encourage State Parties to further work on applying them in the context of the ATT, but it also notes that the body “took note with appreciation” of the HRDD ridden working paper entitled “Responsible Business Conduct and the Arms Trade Treaty” submitted by Mexico, Austria and Ireland.
This was the goal, and it was accomplished. The ATT now has the foundation to build from, and the attack against industry has begun.