The convention appears to be an end run around domestic obstacles to gun control. Furthermore, ratification of the convention would undermine U.S. sovereignty by legally binding it to fulfill obligations that some current signatories already disregard.
The U.S. would be best served by continuing existing programs, cooperating with other countries on a bilateral basis, and making and enforcing its own laws to combat the traffic in illicit arms.
President Barack Obama has called on the Senate to ratify the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials. President Bill Clinton signed the convention in 1997, but neither he nor President George W. Bush sent it to the Senate for advice and consent for ratification.
The convention, commonly known by its Spanish acronym CIFTA, was negotiated under the auspices of the Organization of American States (OAS).
The convention poses serious prudential risks to liberties associated with the First and Second Amendments. Specifically, it seeks to criminalize a wide range of gun-related activities that are now legal in all states, and it would clash with the First Amendment’s protection of free speech.
It would also entitle foreign governments to legal assistance from U.S. authorities when pursuing extradition requests, including requests to arrest individuals exercising their First Amendment rights. These are serious prudential risks. Finally, it would create a chilling climate for the freedom of speech of foreign nationals both in the United States and in the Western Hemisphere as a whole.
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More broadly, the convention poses risks to American sovereignty. Because the convention has no enforcement mechanism, by ratifying it, the U.S. would impose one-sided obligations upon itself, thereby illegitimately constraining American governing institutions. In some cases, these obligations would be constitutionally unacceptable and could not be enforced.
This would place the U.S. in the position of ratifying a treaty that it cannot entirely fulfill, creating an opening for critics to condemn the U.S. for failing to live up to its international obligations.
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The conflict between the U.S.’s treaty obligations and the Constitution would also be useful to domestic advocates who argue that the Constitution is a barrier to U.S. compliance with “international norms.” Thus, the convention fits neatly into a broader transnationalist strategy to reduce the ability of the U.S. to govern itself through laws and institutions of its own making.
By backing the convention, its advocates also advance the idea that the U.S. should act at the suggestion and under the guidance of other states and ultimately of the “international community.”
The defects in the convention are serious and pose prudential risks that cannot be remedied without a substantial number of U.S. reservations to the convention. It is particularly troubling that Harold Koh, a key Administration appointee, offered an unqualified endorsement of the convention before taking office and expressed doubt about the legal validity of reservations.
While his criticism of the legality of reservations is baseless, the number and extent of the necessary reservations would be substantial and incompatible with the core of the convention. The U.S. can therefore neither properly ratify the convention with reservations nor safely ratify it without reservations.
Furthermore, the convention is fundamentally an arms control treaty but is not being treated with the seriousness that should attend arms control agreements. This is dangerous, and the Senate should be wary of these problems if it considers the convention. Read more.