2001 Firearms Protocol

Attention to the threat posed to peace and security by the proliferation of small arms and light weapons grew significantly at the end of the cold war. Initially two strands of work were pursued: an arms-control approach that would lead to the PoA, and a crime prevention approach that would lead to the Firearms Protocol.

In 1995, following the request by the Ninth UN Crime Congress, the UN Economic and Social Council (ECOSOC) called upon the UN Secretary-General to initiate an international study of firearms regulation. ECOSOC, Implementation of the resolutions and recommendations of the Ninth UN Congress on the Prevention of Crime and the Treatment of Offenders, Res. 1995/27, 24 July 1995, §IV.8; See S. Parker, ‘Balancing act: regulation of civilian firearm possession’, in: Small Arms Survey, Small Arms Survey 2011: States of Security, Cambridge University Press, 2011, p. 3. The study, undertaken by the Commission on Crime Prevention and Criminal Justice, was released in April 1996. UN ECOSOC, Measures to regulate firearms: report of the Secretary General, E/CN.15/1996/14, 16 April 1996. In 1997, taking note of the study and while calling for its dissemination, ECOSOC suggested the development of a UN declaration of principles on civilian firearm regulation. ECOSOC, ‘Firearm regulation for purposes of crime prevention and public health and safety’, Resolution 97/28, 28 July 1997, §6.

In fact, several states — including Canada and the USA —pressed for rapid negotiation, by the end of 2000, of a global treaty on illicit firearms trafficking. L. Lumpe, ‘A “new” approach to the small arms trade’, Arms Control Today, Arms Control Association, January/February 2001. At their May 1998 summit in Birmingham, the Group of Eight (G8) leading economic powers, including Russia, also endorsed this goal. Birmingham Summit Communiqué, §21; see also E. Regehr, ‘The G8 and small arms: getting started’, Ploughshares Briefing 98-5, 1998. In December 1998, the UN General Assembly established an open-ended intergovernmental committee to draft a comprehensive international convention that would address the multiple dimensions of transnational organized crime;UN General Assembly Resolution 53/111 of 9 December 1998. the firearms instrument was meant to become a protocol to this larger Convention.

The Firearms Protocol was negotiated at the same time as the July 2001 UN conference on small arms was being prepared. The intention was to focus the new protocol on a narrow crime and law enforcement approach, as opposed to an arms control one. S. Parker and M. Wilson, A Diplomat's Guide to the UN Small Arms Process, Small Arms Survey, 2012, pp. 39–40. States felt that more sensitive issues could be better addressed during the UN conference. The 1997 Inter-American Convention against the Illicit Manufacturing and Trafficking in Firearms, Ammunition, Explosives and Other Related Material became the model for the new Firearms Protocol — with some important modifications. Initially intended to be presented jointly by the Governments of Canada, Mexico, and the USA, Canada jumped the gun by presenting the proposal alone, with some changes, such as removing the reference to explosives. L. A. De Alba Góngora, ‘Las negociaciones sobre armas pequeñas y ligeras: una visión multidimensional’, Revista Mexicana de Política Exterior, No. 75, July–October 2005, p. 112.

There were other issues of contention. The first related to whether the protocol would apply to state-to-state transfers; the second pertained to transfers to non-state actors. States in favour of regulating state-to-state transfers argued they were just as susceptible to diversion into the illicit market. But strong opposition by China, Egypt, Iran, Pakistan, and the USA in particular to a broadening of the scope of the Protocol, which would thus restrict states’ latitude in responding to national security concerns, eventually prevailed. G. McDonald, ‘Strengthening controls: Small arms measures’, in: Small Arms Survey 2002: Counting the Human Cost, Cambridge University Press, 2002, p. 239; De Alba Góngora, ‘Las negociaciones sobre armas pequeñas y ligeras: una visión multidimensional’, p. 112. Language was eventually adopted to preserve the right of states to transfer firearms ‘in the interest of national security consistent with the Charter of the United Nations’. 2001 Firearms Protocol, Art. 4.2. In practice, however, the Protocol does not stipulate any condition upon which a state may or may not transfer firearms, so that attempts to qualify the type of transfers to which it applies appear in hindsight superfluous. S. Parker and M. Wilson, A Diplomat's Guide to the UN Small Arms Process, Small Arms Survey, 2012, p. 36.

As far as marking and tracing is concerned, Canada, Mexico, and the USA advocated marking with numerical and alphanumerical codes at points of manufacture, import, and decommissioning, but other states, including China and some former Soviet republics, favoured marking with symbols. The negotiations resulted in language permitting both systems of marking, meant as a period of transition whereby symbols or otherwise difficult to read markings will be progressively phased out. De Alba Góngora, ‘Las negociaciones sobre armas pequeñas y ligeras: una visión multidimensional’, pp. 112–3.

Meanwhile, negotiations on the UN Transnational Organization Crime Convention and its other protocols proceeded apace. In October 2000, states held what was meant to be a final negotiating session. But they could not yet find consensus on the issue of firearms, and the negotiation mandate ran out. UN General Assembly Resolution 55/25 of 10 November 2000; Lumpe, ‘A “new” approach to the small arms trade’, Arms Control Today, Arms Control Association, January/February 2001. The Transnational Organized Crime Convention was opened for signature in December 2000, along with its two other protocols: on human trafficking and smuggling of migrants. The Firearms Protocol was eventually adopted a few months later, in May 2001.

The Firearms Protocol seeks to combat illicit manufacturing and trafficking in firearms, their parts and components. It was the first global legally-binding instrument on small arms control.

Manufacturing

At the point of manufacture, states undertake to ensure that firearms be marked ‘with (a) a unique marking providing the name of the manufacturer, the country or place of manufacture, and the serial number, or (b) an alternative marking using simple geometric symbols in combination with a numeric and/or alphanumerical code, permitting ready identification of the country of manufacture.’2001 Firearms Protocol, Art. 8. States also commit to maintaining for at least ten years records of information pertaining to firearms, and, if possible, their parts and components, so as to allow their tracing.Ibid., Art. 7.

Illicit manufacturing must be criminalised, as must be the deliberate obliteration, removal or alteration of markings.Art. 5. States commit to confiscating, seizing and destroying illicitly manufactured firearms, their parts and components, and ammunition, unless another means of disposal is officially authorised.Art. 6. In addition, states that do not include deactivated firearms in the scope of the national firearms law must ensure that such firearms are not illicitly reactivated, by inter alia criminalizing illicit reactivation.Art. 9.

Transfers

When transferring weapons from government stockpiles to permanent civilian use, firearms must again be marked.Art. 8.

In addition, many provisions relate to cross-border movement of firearms. First, states must establish a system of licensing or authorization of import, export, and transit of weapons, to ensure that firearms do not cross their border without their awareness and consent.Art. 10. States are encouraged (but not obliged) to regulate arms brokers, for example through registration, licensing or authorization, and transparency measures.Art. 15. Imported firearms must be marked so as to enable identification of the country of import, and, if possible, the year of import.Art. 8.

Illicit trafficking must be established as a criminal offence,Art. 5. and illicitly trafficked firearms must be confiscated, seized, and destroyed, unless some other means of disposal is officially authorized and the firearms have been marked accordingly.Art. 6.