Small Arms & Security: New Emerging International Norms (Contemporary Security Studies)

SMALL ARMS AND SECURITY The widespread availability of small arms has a profound effect on violence in all its forms. ...

Author: Denise Garcia

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SMALL ARMS AND SECURITY

The widespread availability of small arms has a profound effect on violence in all its forms. Over the past ten years, studies published by leading advocacy and research groups, as well as by regional and international governmental organizations denouncing armed violence, have provided much needed information about the extent of small-arms availability and demonstrated how it is one of the main factors contributing to the lack of human security worldwide. As a consequence, the international community has started to take steps toward actively controlling this scourge. This book examines the emergence of new international norms to govern the spread of small arms, and the extent to which these norms have been established in the policies and practices of states, regions and international organizations. It also attempts to establish criteria for assessing norm emergence, and to assess the process of norm development by comparing what actually happens in the multilateral level. If norm-making on small arms and related multilateral negotiations has mostly dealt with “illicit arms,” and most of the norms examined here fall on the arms-supplier side of the arms equation, the author argues that the creation of international norms and the setting of widely agreed standards amongst states on all aspects of the demand for, availability and spread of both legal and illegal small arms and light weapons must become central to the multilateral coordination of policy responses, in order to tackle the growing violence associated with small-arms availability. This book will be of interest to researchers and professionals in the fields of peace and conflict studies, international security and disarmament. Denise Garcia is Assistant Professor of Political Science and International Affairs at Northeastern University and a Research Fellow with the International Security Program and the Intrastate Conflict Program at Harvard University’s Belfer Center for Science and International Affairs. She has worked at and received her PhD from the Graduate Institute of International Studies in Geneva, Switzerland.

CONTEMPORARY SECURITY STUDIES

NATO’S SECRET ARMIES Operation Gladio and terrorism in Western Europe Daniele Ganser THE US, NATO AND MILITARY BURDEN-SHARING Peter Kent Forster and Stephen J. Cimbala RUSSIAN GOVERNANCE IN THE TWENTY-FIRST CENTURY Geo-strategy, geopolitics and new governance Irina Isakova THE FOREIGN OFFICE AND FINLAND 1938–1940 Diplomatic sideshow Craig Gerrard RETHINKING THE NATURE OF WAR Isabelle Duyvesteyn and Jan Angstrom (eds) PERCEPTION AND REALITY IN THE MODERN YUGOSLAV CONFLICT Myth, falsehood and deceit 1991–1995 Brendan O’Shea THE POLITICAL ECONOMY OF PEACEBUILDING IN POST-DAYTON BOSNIA Tim Donais THE DISTRACTED EAGLE The rift between America and Old Europe Peter H. Merkl

THE IRAQ WAR European perspectives on politics, strategy, and operations Jan Hallenberg and Håkan Karlsson (eds) STRATEGIC CONTEST Weapons proliferation and war in the Greater Middle East Richard L. Russell PROPAGANDA, THE PRESS AND CONFLICT The Gulf War and Kosovo David R. Willcox MISSILE DEFENCE International, regional and national implications Bertel Heurlin and Sten Rynning (eds) GLOBALISING JUSTICE FOR MASS ATROCITIES A revolution in accountability Chandra Lekha Sriram ETHNIC CONFLICT AND TERRORISM The origins and dynamics of civil wars Joseph L. Soeters GLOBALISATION AND THE FUTURE OF TERRORISM Patterns and predictions Brynjar Lia NUCLEAR WEAPONS AND STRATEGY The evolution of American nuclear policy Stephen J. Cimbala NASSER AND THE MISSILE AGE IN THE MIDDLE EAST Owen L. Sirrs WAR AS RISK MANAGEMENT Strategy and conflict in an age of globalised risks Yee-Kuang Heng MILITARY NANOTECHNOLOGY Potential applications and preventive arms control Jurgen Altmann

NATO AND WEAPONS OF MASS DESTRUCTION Regional alliance, global threats Eric R. Terzuolo EUROPEANISATION OF NATIONAL SECURITY IDENTITY The EU and the changing security identities of the Nordic states Pernille Rieker INTERNATIONAL CONFLICT PREVENTION AND PEACEBUILDING Sustaining the peace in post conflict societies T. David Mason and James D. Meernik (eds) CONTROLLING THE WEAPONS OF WAR Politics, persuasion, and the prohibition of inhumanity Brian Rappert CHANGING TRANSATLANTIC SECURITY RELATIONS Do the US, the EU and Russia form a new strategic triangle? Jan Hallenberg and Håkan Karlsson (eds) THEORETICAL ROOTS OF US FOREIGN POLICY Machiavelli and American unilateralism Thomas M. Kane CORPORATE SOLDIERS AND INTERNATIONAL SECURITY The rise of private military companies Christopher Kinsey TRANSFORMING EUROPEAN MILITARIES Coalition operations and the technology gap Gordon Adams and Guy Ben-Ari GLOBALISATION, CONFLICT AND THE SECURITY STATE National security in a ‘new’ strategic era Robert G. Patman (ed.) THE POLITICAL ROAD TO WAR WITH IRAQ Bush, 9/11 and the drive to overthrow Saddam Nick Ritchie and Paul Rogers BOSNIAN SECURITY AFTER DAYTON New perspectives Michael A. Innes (ed.)

KENNEDY, JOHNSON AND NATO Britain, America and the dynamics of alliance Andrew Priest SMALL ARMS AND SECURITY New emerging international norms Denise Garcia

SMALL ARMS AND SECURITY New emerging international norms

Denise Garcia

First published 2006 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 270 Madison Ave, New York, NY 10016 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2006 Denise Garcia This edition published in the Taylor & Francis e-Library, 2006. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN10: 0–415–77051–3 (hbk) ISBN10: 0–203–96902–2 (ebk) ISBN13: 978-0-415-77051-4 (hbk) ISBN13: 978–0–203–96902–1 (ebk)

I DEDICATE THIS PROJECT TO THE MILLIONS OF VICTIMS OF ARMED VIOLENCE WORLDWIDE.

CONTENTS

Foreword

xv

ROBERT I. ROTBERG

Preface: the rise of small arms into the international agenda – a debate in the context of global governance and human security Acknowledgments List of abbreviations and acronyms

xvii xxi xxiii

PART 1

Small arms, norms and the international agenda

1

1

3

Norms in international relations: the case of small arms Introduction 3 Objectives of, and approaches to, the development of this study 9 Norms in international relations 14

2

Norm-building processes in the evolution of the small-arms question on the international agenda The enlargement of the concept of security and changes in arms-trade patterns after the Cold War 29 The initial impetus for norm building regarding small arms, 1990–5 34 Furthering norm building on small arms, 1995–2001 46 Developments, 2001–6 59

xi

29

CONTENTS

PART 2

Leading international emerging norms

63

3

65

The destruction and disposal of surplus weapons Introduction 65 Weapons destruction: from practice to international norm 66 Accelerating norm development: changes in state practice regarding weapons destruction 69 Categorizing main actors and their roles in the generation of knowledge on norm building regarding weapons destruction 71 Consolidating norm development: path-breaking events 76 Regional and international norm diffusion 79 Main mechanisms of norm diffusion 88

4

Regulating illicit arms brokering

91

Introduction 91 The Rwandan genocide: the catalyzing event for international norm building? 93 The intricate issue of illicit arms brokering: explaining the obstacles to norm building 95 The generation of knowledge as a prerequisite for norm building 99 Categorizing the main actors 100 Regional and international norm diffusion 104 Main mechanisms of norm diffusion 113 Norm emergence since 2001 115 5

Marking, tracing and record-keeping Introduction 117 Marking weapons: from practice to emerging international norm – how did norm building occur? 118 The eminent persons group: contributing to or obstructing normative development? 124 Tracking international and regional norm building 126 Main mechanisms of norm diffusion 133 Norm emergence since 2001 134

xii

117

CONTENTS

PART 3

Failed or weaker international emerging norms

137

6

139

Creating a norm of transparency in small-arms transfers Introduction 139 Enabling conditions for the norm on transparency to emerge in the post-Cold War period 141 The path of norm emergence on transparency regarding conventional arms transfers in the post-Cold War period 142 Norm development on transparency regarding small arms 147 Regional and international norm diffusion and influence 150 Main mechanisms of norm diffusion 157 Norm emergence since 2001 159

7

Regulating civilian gun ownership

160

Introduction 160 Controlling civilian gun ownership: from domestic law to international norm 163 The UN: the prime site for norm building 165 Tracking institutional norm building 167 Main mechanisms of norm diffusion 174 8

Banning the sale of weapons to non-state actors Introduction 177 The emergence of a failed international norm 178 The international normative context for norm development 179 Reasons for creating a norm on banning the sale of weapons to non-state actors 182 Individual entrepreneurship and norm building 183 Norm diffusion failure 184 Reasons for norm-diffusion failure and the absence of norm-diffusion mechanisms 187 Norm emergence since 2001 189

xiii

177

CONTENTS

PART 4

Findings and conclusions

191

9

193

The making of international norms Introduction 193 Implications of the rise of the small-arms debate for the study of international relations 195 Competing international norms 197 The role of soft law in the origins of norms in international relations 199 Whither compliance? The way forward 201 The constructivist research agenda on norms and the norms on small arms 202 Norm entrepreneurs: key to the origins of norms? 202 Appendix: activism and norm building – “pro” and “anti” gun NGOs

209

Notes Select bibliography Index

211 253 257

xiv

FOREWORD

Small arms and light weapons – assault rifles, machine guns, hand grenades, shoulder-fired rockets, and other weapons that are carried by individual soldiers – are the instruments of death commonly employed in the terrible intrastate wars of the modern era. As conflicts within nation-states proliferate, the flood of small arms becomes a relentless torrent. Their easy availability in an international environment that tolerates violence leads to waves of human suffering and deaths too numerous to count with precision. We think that 15 million innocent civilians have lost their lives in the intrastate mayhem of the world since 1991. Millions more have been maimed. About 12 million have lost their homes and become refugees or internally displaced persons. For obvious reasons, nothing in international relations is more important than stanching this flow of blood. Saving even a modest proportion of the lives currently being lost in civil wars and proxy civil wars would be welcome. Preventive diplomacy and other forms of conflict prevention are helpful in this regard, as are efforts of mediation and negotiation, and anything else that can reduce the demand for hostilities. But, minimizing opportunities to go to battle would assist this effort even more dramatically than by limiting demand. In that endeavor, making weapons of destruction harder to obtain would reduce death tolls and might even constrain many purposeful and some aimless resorts to violence. Nowadays going to war in the developing world is easy. If an insurgent group or a local warlord wants to attack neighbors or national or regional authorities, firepower is ready accessible. Purchasing viable small arms is neither expensive nor difficult. Thus, to reduce the scourge of intrastate combat in today’s world, minimizing the spread of small arms would save lives. Indeed, if the availability of small arms could be curtailed and scarcity and cost be introduced into the equation, then civil wars might become less lethal. The existing mayhem in countries like Cote d’Ivoire, the Democratic Republic of the Congo, Sri Lanka, and the Sudan would greatly be limited if AK-47s and other repeating rifles were rare and expensive. Trying to reach at least part way toward that policy nirvana is a worthy endeavor. Appropriately, it motivates much of the analytical and applied research on the small-arms problem. xv

FOREWORD

Denise Garcia’s book sets these issues in a normative context. It is about a central aspect of the overall small-arms problem – about how new international norms are gestated, nurtured, and translated into effective legislative prohibitions against the proliferation of such weapons. She establishes criteria for assessing how such norms emerge, and shows how international norms move through the conceptual stages toward enactment and enforcement at the national and multilateral levels. Central to Dr. Garcia’s argument is a sophisticated examination about how important it is and will be for nation-states to set broadly agreed upon standards controlling the demand for, availability of, and diffusion and trafficking of both licit and illicit small arms. Some observers may regard these issues as technical. However, as Dr. Garcia shows, such concerns and the larger problems that encompass the supply of small arms are at the very heart of global governance. She demonstrates how norm formation takes hold in the international arena and how, in the small arms as well as the land mines domains, the process of norm formation remains at the heart of global governance development and reform. As the United Nations and regional organizations attempt through novel instruments to build peace and strengthen the movement against the settling of intrastate disputes through violence, Dr. Garcia’s process tracing of norm construction for small arms is instructive for world order. Moreover, if the lessons that she offers prove instructive, millions of lives will be spared. Robert I. Rotberg

xvi

PREFACE: THE RISE OF SMALL ARMS INTO THE INTERNATIONAL AGENDA A debate in the context of global governance and human security

A multilateral meeting in one of the large negotiation rooms at the UN in New York is an intensely dynamic experience. At any time, at any point, a state, an NGO, or an international or regional organization is making a statement. There is always a background buzz, a constant murmur, so that there is never total silence. At all times, at least half of the room is in intense discussion, busy contributing to the making of what is known today as global governance, understood here to encompass the multi-layered and highly complex (political and legal) common understandings that form the relations between states and other actors in international politics.1 The problems associated with the spread and availability of small arms are of an eminently international nature, and solutions can only be understood in the new framework of global governance. Without common understandings brought about by properly functioning global governance, the terrible afflictions caused by armed violence will not be reduced or eliminated. The evolution of norms – common understandings – in international relations is inextricably linked to the quest for global governance. Halting armed violence is about the development of multiple global governance mechanisms. This book explores how states and other actors are engaged in making international norms to address the spread of small arms. It is to be hoped that practitioners and students of other areas of international relations will find it useful to replicate the method and propositions I generate in this study of an increasingly vital area of human endeavor. At the Millennium Forum in 2000, the UN General Assembly adopted the We the Peoples Millennium Forum Declaration and Agenda for Action, after 1,350 representatives of over 1,000 non-governmental organizations and other civilsociety organizations from more than 100 countries had gathered at the UN Headquarters in New York to revisit the challenges of the 1990s and to look ahead to the next millennium: xvii

PREFACE

We begin the new millennium facing grave and interconnected challenges. As actors in the struggle for peace, justice and the eradication of poverty, NGOs encounter daily the human impact of rising violence and armed conflicts, widespread violations of human rights and unacceptably large numbers of people who are denied the means of a minimal human existence.2 Among the top challenges highlighted by the Millennium Declaration, the role of the unchecked flow of small arms in the promotion of insecurity figured prominently: The death toll from small arms dwarfs that of all other weapons systems and in most years greatly exceeds the toll of the atomic bombs that devastated Hiroshima and Nagasaki. In terms of the carnage they cause, small arms, indeed, could well be described as “weapons of mass destruction”. Yet there is still no global non-proliferation regime to limit their spread, as there is for chemical, biological and nuclear weapons. Small arms proliferation is not merely a security issue; it is also an issue of human rights and of development.3 Other challenges were HIV/AIDS and other diseases, poverty, trafficking in women, sexual exploitation, drug trafficking, money laundering and corruption. After the terrorist attacks in the United States on 11 September 2001, terrorism was added to this by-no-means exhaustive list of global problems. It is now widely accepted that threats and challenges like violence and terrorism are preponderantly transnational and no state is able to cope with them alone, not even the United States, the most powerful of all and the hegemon of the early twentyfirst century. So the current American administration’s reluctance to take part in multilateral agreements does not mean that the making of norms through common understandings among states and non-state actors has become any less important. In the aftermath of the Cold War, there was a sense of optimism that a “new world order” had been born, providing a window of opportunity where more international cooperation seemed possible. In the aftermath of the 11 September attacks, the worldwide outpouring of solidarity with the victims of those attacks opened another window of opportunity toward possible avenues for international cooperation. The American administration’s inaccurate declaration of a “war on terrorism” and the sequence of unilateral and unpopular US decisions that followed closed this window. This opening and closing of windows of opportunity also generated a process of putting the Westphalian system of states, as we know it, in check.4 The United States’ decision to go to war with Iraq in effect overruled the intensely upheld norm of non-recourse to the use of force to solve international problems. It also put the validity of the United Nations in jeopardy. The Oil for Food scandal helped further demoralize the work of that organixviii

PREFACE

zation, raising questions as to whether it is still relevant in this highly contested and challenging world. However, the hegemon, America, has been found wanting in its commitments to the moral values it claims to uphold in the fight against terrorism. It blatantly violates the widely upheld international norm against torture and erodes civil rights at home. In the aftermath of the terrorist attacks, and increasingly with the mounting difficulties it is experiencing in dealing with the occupation of Iraq, it became clear that the United States alone is incapable of acting effectively. Multilateralism, despite recent anomalies in international behavior, remains vital, and the UN clearly still has a vital role to play in this regard. The making of global norms on small arms within the Westphalian system demonstrates the need for more creative ways to seek solutions to multilateral challenges. One of the norms examined in this book, the one on civilian possession of arms, even though it is widely espoused in most states in the world, is not part of the main international instrument on small arms due to the opposition of the United States. This norm, if established, would be a powerful way to address not only the illicit side of the small-arms debate (the main focus of attention so far), but also the issue of legal arms, which is still largely unaddressed, principally in multilateral negotiations. Transnational terrorism, a phenomenon that cuts across borders, and a morally weakened hegemon show that a world without norms is an extremely dangerous one. Because it is the hegemon that can block consensus at the international level, the importance of regional norm-making is becoming much more highly valued, an issue that this study will explore in depth. To date, international small-arms negotiations have been taking place in the UN First Committee for Disarmament and International Security. But future small-arms negotiations will have to go creatively beyond this paradigm by integrating the cardinal concern of security and its linkage to the attainment of development (freedom from poverty and freedom from armed violence). The emerging global norms on small arms, which resulted from the fact that the issue was initially framed and negotiated as a state security concern, have been found to be incomplete, as they do not comprehensively address the implications of the proliferation of small arms for development, humanitarian law, human rights and public health. Principally at the international level, negotiations on small arms have focused on the illicit aspect of international arms trafficking, and states have been upholding the deeply held sovereignty principle in not dealing with the legal aspects of small-arms availability. This way, states attribute the problems associated with the widespread use of small arms to their illegal distribution. The fundamental dilemma regarding the creation of human security norms in the world today is that they do not fit comfortably with the principle of state sovereignty: The fundamental difficulty with asserting humanitarian norms in a world dominated by states is that humanitarian values are premised on a worldview not easily accommodated within the principles and rights xix

PREFACE

associated with state sovereignty. In a states system, the unit of concern is the state; individuals are recognized and categorized . . . as citizens or aliens. By contrast, the humanitarian world view asserts that individuals have status and worth independent of their relationship to states.5 As will be seen, the emerging norm regarding transparency in (legal) arms transfers is both weak and controversial, while the norm on banning (legal) weapons transfers to non-state actors, which would impinge on the sovereignty of states, has failed to diffuse internationally. The conclusion is obvious. We have effectively two choices before us. We may continue as we have to date, focusing predominantly on the large normative and legal frameworks that deal with supply of small arms. Doing so will render irrelevant the technical expertise, interest and potential contributions of a variety of stakeholders deeply concerned by the human suffering the Programme of Action is meant to address. Our second choice is that our way forward broadens beyond what has been the case to date to develop a coherent and comprehensive response to the call in the Programme of Action to simultaneously address demand for small arms.6 International norms will be needed to achieve the goal of diminishing the violence perpetrated by small arms. To do this, more of the actors who work away from the negotiating capitals of the world will have to be fully integrated into the matrix of global governance.7 The spread and use of small arms contribute to the lack of human security in the world. The goal of global governance must be the provision of means to enhance human security that is intertwined with the elimination of fear resulting from armed violence.

xx

ACKNOWLEDGMENTS

From 1995 onwards, the issue of small arms started to be dealt with as a separate item in the world of policy-making. In 1998, when the decision to convene the first multilateral UN conference on the illicit trafficking of small arms was adopted by the General Assembly, I was spending some months researching at the Bonn International Center for Conversion (BICC). It was in conversations with Herbert Wulf (the BICC’s director at the time) and Glaucia YoshiuraBoyer about my preoccupations with my own country, Brazil, and its huge problem of armed violence that he suggested small arms as the research theme for my Master’s thesis at the Graduate Institute of International Studies of the University of Geneva (IUHEI), Switzerland. I took Wulf’s advice and my thesis, completed in 1999, was one of the first on this new issue in international security. At that time, also, the Small Arms Survey was founded in Geneva, under the direction of Keith Krause at IUHEI. For my PhD thesis, under Krause’s guidance, I continued researching the issue of small arms. My research took a practical turn when I worked for the Peace Building and Disarmament Program of the World Council of Churches (WCC) in Geneva, where I organized the first ecumenical conference on armed violence and smallarms spread in Latin America. With Salpy Eskidjian, at that time also working for the WCC, I had a wonderful opportunity to meet grass roots and NGO advocates from all over the world working mostly with the victims of armed violence, especially those from Mozambique, South Africa, Sierra Leone, Colombia, Mexico and other countries in Latin America. During my work at the WCC, I met Edward Laurance of the Monterey Institute of International Studies (MIIS), whose guidance has always been fundamental to my work. I also became acquainted and worked very closely with Viva Rio, the largest advocacy NGO in Latin America dealing with armed violence. Viva Rio’s work and the annual meetings and interviews I had with that extraordinary team exercised enormous influence on my research. I wish to thank Antonio Rangel especially. It took many years to bring this project to fruition, and many people assisted with it along the way. First and foremost, I would like to give special thanks to five people without whom the project would not have been possible. I am indebted to my editor at Routledge, Andrew Humphrys; and my English editor, xxi

ACKNOWLEDGEMENTS

Alex Potter, who worked patiently and attentively with me from South Africa. I owe the deepest gratitude to the invaluable guidance I received from Edward Laurance of MIIS and Robert Rotberg of the Intrastate Conflict Program at Harvard University, where I have been since 2003. I will always be grateful to Keith Krause, from IUHEI and the Small Arms Survey, for his acute mentorship. I wish also especially to thank three anonymous reviewers whose comments shone a new light on this project and inspired me to explore new avenues. I recognize and enormously appreciate the work of several advocates, activists, researchers and scholars involved in the small-arms debate and in related fields who generously shared their time and expertise with me, and many anonymous contributors as well. Especially, I would like to thank (again) Professor Edward Laurance and Professor Michael Klare, not only for their contributions to this project, but for inspiring the small-arms debate in general. I would also like to extend grateful thanks to Erica Cosgrove, Brian Wood, Antonio Rangel, Victor-Yves Ghebali, Silvia Cattaneo, Marisa von Bullow, Pallavi Rai, Loretta Bondi, Herbert Wulf, Sergio Saba, Salpy Eskidjian, Yasmin Naqvi, Adriano Gonçalves, Aaron Karp, Rolf Schwarz, Laurent Pauwels, Derek Miller, Camilla Waszink, Edward Peartree, Michel Wery, Wendy Cukier, David Sylvan, Carola Weil, Sarah Estabrooks, Peter Batchelor, Sami Faltas and Jorn Brommelhorster. At Harvard, I wish to warmly thank Debbie West and Elisa Pepe, Sean LynnJones, Sarah Buckley and my colleagues at the Intrastate Conflict Program for critical and helpful comments within our own “epistemic community”: Kelly Greenhill, Maria Koinova, Omar McDoom, Marie Besançon, Nick Biziouras, Michael J. Boyle, Vanda Felbab-Brown, Caty Clement, Rachel M. Gisselquist and Emily Oster. Also at Harvard, I am grateful to Steve Miller and Stephen Walt for welcoming me at the Harvard International Security Program and for their guidance. I am immensely grateful to my families in Brazil and in the United States for their unconditional support and love beyond international norms: J. Garcia Gasques, Sonja E. Garcia, M. Beatriz Garcia, Isabela Abdala, Aldo and Maria Jesus (e meninas), Diane Lapon, Jennifer Lapon, Elizabeth Lapon and Adam Gusman. My husband Jeremy Lapon, without you, nothing would have been possible.

xxii

ABBREVIATIONS AND ACRONYMS

Abbreviations Bamako Declaration: Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons, adopted by the Member States of the OAU, in pursuance of Decision AHG/December 137 (LXX) of 1999, 30 November–1 December 2000, Bamako, Mali Brasilia Declaration: Brasilia Declaration of the Regional Preparatory Meeting of the Latin American and Caribbean States for the 2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, Itamaraty Palace, Brasilia, 22–24 November 2000 EU Code of Conduct: Resolution on a European Code of Conduct on the Export of Arms, European Parliament, 0104/98, 15 January 1998 EU Joint Action: European Union Joint Action on Small Arms, resolution adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the European Union’s contribution to combating the destabilizing accumulation and spread of small arms and light weapons, 1999/34/CFSP, 17 December 1998 Firearms Protocol: 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, A/Res/55/255, 8 June 2001 Nairobi Declaration: Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa, Nairobi, 15 March 2000 OAS Convention: Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and other Related Materials, General Assembly, Twenty-fourth Special Session OEA/Ser.P, Washington, DC, AG/RES. 1 (XXIV-E/97), 14 November 1997 OSCE Document: OSCE Document on Small Arms and Light Weapons, FSC.DOC/1/00, 24 November 2000 Program of Action: The Program of Action to Prevent, Combat, and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, issued as xxiii


part of the Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 9–20 July 2001, A/CONF.192/PC/15, 2001 SADC Protocol: Protocol on the Control of Firearms, Ammunition and Other Related Materials in the Southern African Development Community Region, August 2001 UN Commission: UN Commission on Crime Prevention and Criminal Justice UN Comtrade: UN Commodity Trade Statistics Database UN Guidelines: Disarmament Commission, Guidelines for International Transfers in the Context of General Assembly Resolution 46/36 H of 6 December 1991, 7 May 1996. UN Register: UN Conventional Arms Register UN Study: UN General Assembly, Study on Ways and Means of Promoting Transparency in International Transfers of Conventional Arms, A/46/301, September 1991 UN Trust Fund: UN Trust Fund for the Consolidation of Peace through Practical Disarmament Measures UN 2001: UN Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 9–20 July 2001 Wassenaar Arrangement: Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies 1997 Panel Report: UN General Assembly, Report of the Panel of Governmental Experts on Small Arms, Pursuant to Paragraph 1 of General Assembly Resolution 50/70B of 12 December 1995, A/52/298, 27 August 1997 1999 Group Report: UN General Assembly, Report of the Group of Governmental Experts on Small Arms, A/54/258, 19 August 1999

Acronyms BASIC BICC BMS CIP DRC EPG ECOWAS FAO GIS GRIP ICBL IHL ILC IAEA IANSA

British American Security Information Council Bonn International Conversion Center Biennial Meeting of States Permanent International Commission for Small Arms Testing Democratic Republic of Congo Eminent Persons Group Economic Community of West African States Food and Agriculture Organization Group of Interested States in Practical Disarmament Measures Group for Research and Information on Peace and Security International Campaign to Ban Landmines International Humanitarian Law International Law Commission International Atomic Energy Agency International Action Network on Small Arms xxiv


IWETS MANPADS MIIS NISAT NRA OAS OAU OSCE PfP PRIO SADC TAE TAN UNDP UNDDA UNDPA UNECOSOC UNEP UNIDIR UNITA WFSA WFP

Interpol Weapons and Explosives Tracking System Man-portable air-defense system Monterey Institute of International Studies Norwegian Initiative on Small Arms Transfers National Rifle Association Organization of American States Organization of African Unity Organization for Security and Cooperation in Europe Partnership for Peace (NATO) International Peace Research Institute Oslo Southern African Development Community Tools for Arms Project Transformation advocacy networks UN Development Program UN Department for Disarmament Affairs UN Department of Political Affairs UN Economic and Social Council UN Environment Program UN Institute for Disarmament Research National Union for the Complete Independence of Angola World Forum on the Future of Sport Shooting Activities World Food Program

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Part 1 SMALL ARMS, NORMS AND THE INTERNATIONAL AGENDA

1 NORMS IN INTERNATIONAL RELATIONS The case of small arms

Introduction The widespread availability of small arms has a profound effect on violence in all its forms. In countless conflicts throughout the world, millions of lives have been shattered as the direct or indirect result of armed violence. The unrestricted availability of small arms fuels suffering, exacerbates massive violations of human rights, and hinders development and the provision of good governance. In the last ten years, more and more studies have been published by leading advocacy and research groups, as well as by regional and international governmental organizations, denouncing armed violence, informing the world about the extent of small-arms availability and demonstrating how this is one of the main factors contributing to the lack of human security worldwide. As a consequence, the international community has started to take steps toward actively controlling this scourge. The present study deals with what has become a significant topic on the international security agenda: the unrestricted availability and spread of small arms and light weapons, which are the main tools of violence in today’s conflicts and in crime throughout the world.1 Armed violence is a considerable problem facing humankind. Specifically, this study will examine the emergence of new international norms to govern the illicit and unrestricted availability and spread of small arms.2 To date, norm-making on small arms and related multilateral negotiations have mostly dealt with “illicit arms,” and most of the norms examined here fall on the arms-supplier side of the equation. However, the creation of international norms and the setting of widely agreed standards amongst states on all aspects of the demand for, availability, and spread of both legal and illegal small arms and light weapons must become central to the multilateral coordination of policy responses in order to tackle the growing violence associated with arms availability and spread around the world. The study does not concern itself directly with crime, violence, arms trafficking, stockpiling, transfers and the weapons themselves per se. There are other publications that authoritatively address such matters. Rather, it examines how states, non-governmental and international organizations, and motivated 3

SMALL ARMS, NORMS AND THE INTERNATIONAL AGENDA

individuals started to act upon the destruction, human rights abuses and humanitarian crisis that are a consequence of the wide availability of weapons. It examines the development of global norms that are intended to coordinate states’ response to the excessive availability of small arms worldwide. The focus is on how these emerging norms came about, who their main defenders and sponsors were, and under what international circumstances they were brought into being.3 Therefore, the study is intended not only for those concerned with worldwide violence, lack of human security and an understanding of the tools with which this violence is perpetrated; it is also aimed at those – students or otherwise – interested in the making of international politics and political change at its intersection with international law,4 i.e. with the making of international norms. In the light of this, it is worth noting that the emerging norms analyzed here are not confined to traditional understanding of law flowing from treaties or legally binding instruments achieved by consensus. Rather, normmaking is examined in the framework of the interaction of multiple actors, both state and non-state, in international relations and how they influence changes in state practice and shape state conduct, i.e. with the actual processes of such changes as they occur in the real world.5 Small arms and the international security agenda Millions of people live daily under the fear and threat of armed violence, and there are few places left where they can live untouched in some way by the dangers posed by such violence.6 In conflict zones and in violent urban or rural contexts, hundreds of thousands of people die every year, victims of armed violence. Small arms and light weapons have therefore become the real weapons of mass destruction, hindering development and increasing cultures of violence and impunity throughout the world. Therefore, the creation of international norms regulating the wide availability of small arms and light weapons is crucial to halting the bloodshed, reducing violence and providing the means for more sustainable post-conflict reconstruction. The debate on small arms has assumed increased prominence in the international security agenda, especially in the United Nations (UN), the Organization for Security and Cooperation in Europe (OSCE) and other institutions, and a wide number of non-governmental organizations (NGOs),7 particularly since 1995. Toward the end of the 1990s, the debate on small arms was one of the most vigorous and most pressing matters of concern, not only within the international disarmament and arms-control agenda, but also within development, public health and human rights agendas. In the realm of “high politics,” the use of landmines, another issue in international security, became a concern to states and NGOs at the beginning of the 1990s. The International Campaign to Ban Landmines (ICBL) managed successfully to lead an international network of action that culminated with the legally binding and widely adhered to Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their 4

NORMS IN INTERNATIONAL RELATIONS

Destruction of December 1997, one of the major successes in multilateral arms control agreements. This successful coalition of states and non-state actors catalyzed ongoing international action on small-arms spread. Nonetheless, from the start, there was considerable doubt as to whether the creation of a framework to deal with the spread of small arms would be as successful. This uncertainty was aggravated by the realization that this new issue would not be successfully dealt with by one single international treaty only, like landmines. The rise of small arms and landmines, both subjects from the sphere of high politics in the international security agenda, attests that states’ security policy-making is no longer restricted to the closed domain of states themselves, but is increasingly influenced by other actors in international relations, such as non-governmental actors. The present study exploits the latter’s distinctive and overlapping roles, as well as that of states and individuals, in forging normative arrangements and – sometimes – in retarding their development and articulation.8 There is clearly a growing attempt by civil society and some like-minded states to oversee and influence governmental activity in domains that before were perceived to be the restricted jurisdictions of states.9 Even though both small arms and landmines became a subject for increasing attention and regulation by the end of the 1990s, they have different natures. Landmines lent themselves to one single norm and their outright ban to halt the humanitarian devastation they cause was achieved under one single international treaty.10 Differently, small arms and light weapons are legitimate tools for individual and state defense needs and demand a profoundly more complex international management framework. Small-arms spread and availability is essentially an international problem, due to the international nature of both illicit arms trafficking and the licit trade, and also because of the widespread character of the problem of armed violence in the world. Given these characteristics, small arms control lends itself to an international normative management framework of multiple norms in areas as distinct as laws regulating civilian gun possession, international standards for arms transfers, surplus weapons destruction, regulation of illicit arms brokering, barring the sale of weapons to non-state actors, export controls, among others. Over a decade ago, there were no concerted efforts to set standards regulating the production, use, stockpiling and transfer of either small arms and light weapons or landmines. During the Cold War, the international community focused on the creation of mechanisms of regulation and regimes to control weapons of mass destruction. A regulatory framework of control and disarmament for conventional weapons in general, and small arms in particular, was largely absent. This study will explore how the problems caused by the spread of small arms assumed significant importance in the international security agenda, becoming an issue of multilateral prominence by the end of the 1990s. It will analyze how norm building took place, tracking a development path that grew from a complete lack of scholarly analysis and policy-making on small arms to a gradual 5


process of generation of knowledge at the beginning of the 1990s – a vital step that preceded international norm building – up to the formation of a small arms multilateral framework of action, especially within the UN, the OSCE, the OAS, the SADC, as well as within the non-governmental realm.11 The study will provide reasons why the UN remains a prime site for norm development. However, it will also explain why norm entrepreneurs and NGOs find norm building in the UN defective, and how unrestrained dissenting states are able to derail an otherwise developing consensus in favor of one or another aspect of small-arms negotiations that undermines or limits the effectiveness of the overall process. The analysis will particularly focus on the norm-building entrepreneurial role of key individuals, states and NGOs. Soft law and norm building In the evolutionary process of international norm building, this study will examine how specific actors influence other actors and persuade them to adopt new norms. However, norm building on small arms is a new phenomenon, in progress only since the mid-1990s. Therefore, there are at this stage no firm and consolidated international norms. In addition, there are very few legally binding treaties addressing small arms. Hence, the study looks at “emerging norms,” also enshrined in politically binding agreements. Such an analysis has the benefit of grasping the evolving nature of international relations.12 A ground-breaking three-year multidisciplinary project led by the American Society of International Law, called the Soft Law Project, culminated in a book that focuses mostly on compliance with non-binding norms – in the areas of the environment, human rights, arms control and finance.13 This book attests, with rich empirical evidence, that in recent years, soft law in the form of non-binding instruments has offered sufficient basis for legal obligation, or opinio juris, highlighting emerging custom and assisting in the establishment of the content of new norms. As Dinah Shelton points out, “[t]he process of drafting and voting for non-binding normative instruments also may be considered a form of state practice.”14 The analysis of this process is an intrinsic part of the methodology of the present study. Therefore, for the assessment of norm development, the study will examine speeches and official statements, state practice and most of the few existing regional and international documents that might indicate emerging practices shared by a considerable number of states, i.e. “soft law.” The findings of the Soft Law Project reiterate the already commonly held view that, together with states, international governmental organizations, NGOs, epistemic communities and transnational corporations, among others, contribute to the making of law. The findings also pose the question: Why the choice of soft law over legally binding commitments? Authors writing in the Soft Law Project publication point to the fact that the option for soft-law engagements was due more to the nature of the problem being addressed, and developed independently of expectations of compliance.15 They also advance several concrete 6


reasons why soft-law commitments take precedence over legally binding treaties. Some of these reasons are directly relevant to the international debate on small arms and will be explanatory of some of the emerging norms examined here. Among them, the following are worth noticing:16 1

2

3

4

The bureaucratization of international institutions and the accompanying necessity of rapid response and flexibility, with mandates to initiate norm creation, make “deformalized” responses through programs of action and other such policy instruments more viable. When an issue is new, not yet fully framed and surrounded by uncertainty, scientific or otherwise, legally binding instruments may be deemed unsuitable. The Soft Law Project authors suggest that soft law may be increasingly the response to a new international political and legal system. The new international political system is increasingly more transparent, participatory and accountable, and NGOs have become a major force in this context. Soft law allows non-state actors a more prominent role than traditional state-only law-making. Soft law can generally be enacted and adopted faster due to its generally less-restraining character.

Furthermore, soft law has been considered by some analysts as a stepping stone toward the creation of hard law, and by others as more than that: Soft law often constitutes the first step in the formulation of effective responses to global problems – filling the normative vacuum and anticipating the harder, more detailed regulation offered by treaties or international customary law. With the passage of time and the accumulation of state practice, “soft laws” may develop into customary law and/or be translated into treaty form.17 Soft law is valuable on its own, not only as a stepping stone to hard law. Soft law provides a basis for efficient international “contracts,” and it helps create normative “covenants” and discourses that can reshape international politics. International legalization in all its forms must be considered one of the most significant institutional features of international relations.18 Since the mid-1990s, a myriad of regional and international legally and politically binding documents have been designed to set standards and norms to deal with the problems associated with the spread of small arms. On an international level, however, there is no broad-scope international legally binding agreement regulating the wide range of issues associated with this class of weapons. The Firearms Protocol, in force since 3 July 2005, is the only international legally binding document addressing small arms; however, its narrow 7


scope includes only commercially traded weapons.19 Therefore, governmental transactions do not use the same agreed standards set up by the protocol. The first international conference to address the illicit arms trafficking convened in July 2001 under the auspices of the UN: the Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, held in New York, 9–20 July 2001 (hereafter UN 2001). UN 2001 issued the politically binding Program of Action, which set up the first internationally agreed set of norms and standards concerning most aspects of the illicit trade in small arms.20 The implementation and repeated practice of the Program of Action by a considerable number of states might indicate the origins of customary law regarding the small-arms issue. Customary international law has been defined as including state practice or widespread repetition by states of similar international acts over time. Such acts must occur out of sense of obligation and be taken by a significant number of states and not be rejected by a significant number of states.21 Customary international law develops from the practice of states.22 Both conventional and customary rules are binding, or “hard” law, as spelled out in Article 38(1) of the Statute of the International Court of Justice, constituting the main forms of international law. However, as indicated, the present study is interested in the more recent developments within the international normmaking process that came to be called “soft” law, which may include “emerging norms” that start to embed themselves within the practice of states. Christine Chinkin, an author for the Soft Law Project, has vigorously articulated that the complexity of the international legal and political system has, however, outgrown the paradigm established by Article 38(1). The new paradigm brought about by new forms of law contributes to more cooperation and stability in the international system.23 The cooperative aspect of this assertion can definitely be observed in the small-arms debate. Soft law may encompass several norms that are in effect observed by states even though, rigorously, they are not obliged to do so; however, the fact that they are generally observed, and are expected to be so, gives them a predictive value similar to those norms expressed in hard law – which of course are also not always observed.24 The present study seeks to assess whether the repeated practice of states, or changes in such practice, signifies the consolidation of an emerging norm. The analysis of soft law in the form of politically binding regional and international agreements illustrates the norm building and evolutionary change elements of interest here, at the intersection of international politics and law.25 It also fills the lacuna between the need for action and the actual creation of regulations and legally binding treaties that will ultimately bind states to commonly accepted behavior and practices. However, the analysis will not suggest that soft law is the only point of interface between international politics and law. Instances of this are UN Security Council resolutions that are clearly binding on states practices and that involve a great deal of politics in their formation. Also, politics is also critical to the formation of treaties and customary law.26 But it 8


will be suggested that the route toward multilateral legally binding treatymaking can be long and cumbersome.27 The shortcomings and deficiencies of legal-treaty-making are notorious in an increasingly complex international political context that is full of challenges and is pressured by countless claims by so many actors.28 The study looks mostly at how states develop custom through state practice that falls short of committing to legally binding agreements, due to the newness of the small-arms debate, even though the analysis also includes some legally binding treaties on small arms. Usually, research on norms does not devise precise ways to explain and understand the origins of norms, their strength and robustness at the regional and international levels, the relationship between domestic and international arenas, or to systematically determine the mechanisms through which norms diffuse. Here, precise indicators within such processes are developed as much as possible. Finally, the analysis of normmaking processes takes into consideration the many norm-makers who are advocates for such processes other than the state, representing a richer and more varied account of the origins of international norms on small arms.

Objectives of, and approaches to, the development of this study In the analysis of norm development, there is a tendency for scholars to look at norms that work, i.e. successful norms.29 This study will examine not only successful emerging norms, but also those that failed to emerge or that present weaker patterns of international diffusion and consolidation. The study’s driving puzzle is multifold: how are norms developed and built in today’s complex international relations? Who is responsible for such norm-making? Is it individuals? Or states in coalition with NGOs? This puzzle is tested against a rich array of empirical evidence presented through the cases studied, which are divided into leading international emerging norms (which deal with the disposal and destruction of surplus weapons; the regulation of illicit arms brokering; and marking, tracing and record-keeping) and weaker or failed international emerging norms (which deal with creating a norm of transparency in small-arms transfers, regulating civilian gun ownership – a very puzzling case, as it will be demonstrated – and banning the sale of weapons to non-state actors). An illustration of how the study will test the empirical evidence with regard to some of the norms that will be examined might be appropriate here, e.g. the norm on the destruction of surplus weapons. A decade ago, weapons that were deemed surplus or excess in arsenals all over the world, or seized in the context of police operations and crime occurrences, or left over from conflicts that raged during the Cold War, were put in storage. The case of Albania – to be detailed later – is telling in illuminating the tragic effects of the pillage of its arsenals in 1997. The weapons ended up fuelling the conflict in Kosovo and in the entire region. Nowadays, almost all states destroy excess weapons: 9


Indeed, one of the most significant U.S. contributions in implementing the Program of Action on Small Arms has been in the area of destruction assistance projects run by the Department of State. Since early 2001, U.S.-supported programs in 23 countries have resulted in approximately 800,000 small arms and light weapons, and 80 million rounds of ammunition destroyed. Since 2003, the United States has destroyed over 13,400 MANPADS in 13 countries in Africa, Central America, Eastern Europe and South East Asia. The United States sees the destruction of small arms, coupled with effective stockpile security and management procedures, as a practical way to reduce the potential for poorly secured and surplus small arms to enter the illicit arms market.30 Or take the example of the emerging norm on regulating illicit arms brokering. The need for some sort of regulation is indicated by a simple example: Victor Bout, by most accounts the world’s largest illicit arms dealer, operates largely beyond the reach of national laws or international law.31 Brokers are individuals who operate in the illicit arms market under a mantle of legality that usually takes advantage of ambiguities and loopholes in the laws of several countries regarding the import, export and shipment of weapons. Most states do not have laws to rein in the activities of arms dealers, and yet illicit arms trafficking inflames conflict and violence worldwide. The case of Rwanda in 1994, a genocide not only perpetrated with machetes, but also with small arms and light weapons, helped to crystallize international awareness regarding the work of international arms traffickers or brokers. Since the end of the 1990s, there has been an increasing awareness of this largely unaddressed problem in international law. Another example of norms examined here is the emerging norm on regulating civilian gun ownership that failed to be consolidated at the international level (i.e. it was not enshrined in any of the international politically and legally binding documents addressing small arms), but the relevant part of the study will demonstrate how it has the potential to become an international norm due to practice in most states. Contrarily, it will be shown how a potential norm on banning the sale of weapons to non-state actors was doomed from its inception. States supplied non-state groups during the Cold War and continue to do so, as there has been no relevant change in state practice. And yet the study will detail how even this failed norm was consolidated at least formally at the European level. What happened in the last ten years that brought these new emerging norms into fruition, or that prevented them from coming under the spotlight of international attention? How did states start to incorporate the practice of destroying still-serviceable weapons? Why did states start negotiating agreements to coordinate and create policies and strategies to rein in the activities of arms brokers? How did these emerging norms come about? Who influenced them? Will such norms change state behavior?32 This study will attempt to unravel these and other prominent questions that illuminate some of the dilemmas in the study of norms in international relations. 10


This book has four parts. Part 1 comprises Chapters 1 and 2. Chapter 1 includes a statement of the nature of the project, including its introduction, objectives and methodology. The literature employed here draws from a constructivist analysis of norm building and the role of norms in international relations, including the stages of norm building, and the conditions and mechanisms for norm diffusion. The methodology uses a three-tiered method of global norm development analysis – a novel method devised to study emerging new norms, the research question and the hypotheses guiding this project. Chapter 2 looks at normative change and norm-building processes in the evolution of the small-arms question in the international security agenda. The chapter starts with the analysis of changes in the arms-control patterns and in security perceptions after the Cold War. This is followed by a demonstration that the generation of knowledge is a prerequisite for norm building: the role of the “arms trade epistemic community” and that of the UN in these processes is examined here. The last part of Chapter 2 details the formation of a global and regional action and policy framework on small arms, including the formation of a transnational action and policy network on small arms and the formation of a coalition of like-minded states; and, finally, the chapter outlines the main regional and international legally and politically binding documents on small arms until 2005. This will foreshadow Parts 2 and 3: the analysis of the norms, and how they emerged (Part 2, comprising three chapters, each one containing a case study) or failed to do so (Part 3, also comprising three chapters, each consisting of a case study). Part 4 contains the conclusions. The three-tiered method of global norm-development analysis The most manifest shortcoming in the study of norms is the proper identification of a new norm (or new trends leading to norm building) when one appears, and the failure to notice the emerging principles, prohibitions and understandings involved in this process.33 The major shortcomings of the study of norms are the focus on the degree of institutionalization34 and on the norm that has worked.35 The present study advances precise means for identifying an emerging norm (through the hypothetical norm given at the beginning of each case study), focusing not only on norms that have worked, but also on those that did not work. Finally, it draws links between the material world (particular state practices that indicate norm building) and the new norms. The study finds that the initial norm building on small arms happened in two phases. The first phase took place from the beginning of 1990s until 1998. As will be demonstrated, the emergence of small arms as an issue took place during the 1990s. The end of this decade marked the decision of states to hold the first international conference to address illicit arms trafficking. This represented the establishment of small arms as one of the most important topics in the international security agenda. The second norm-building phase took place from 1999 11


to 2001. During this period, international awareness of the problems caused by the spread of small arms was consolidated and some norms started to emerge: weapons destruction, transparency, regulation of illicit arms brokering activities and export controls. The period between 2001 and 2006 will also be examined within the continuum of the norm-building process. Each case study in this book is pursued according to an overarching guiding three-tiered methodology for tracking norm emergence. This methodology will be used to assess the history of norm emergence related to small arms since the beginning of the 1990s, principally until UN 2001, and will involve: the identification and categorization of the main actors; the identification of the components of the norms they espouse; and how they diffuse the norms (mechanisms) and influence other actors regarding them. After UN 2001, a watershed event in international norm building on small arms, the study will examine how norm building deepened within regional contexts and at the international level until 2006. Therefore, this study attempts to find out how the many norm makers created and diffused new potential norms. Even though research on norms demonstrates that states are “socializable” to new norms, more emphasis is needed on empirical studies about the origins of norms, how to measure their strength at the regional and international levels, the relationship between domestic and international levels, and the mechanisms that enable norm diffusion to take place. The following framework will be used to identify these variables and processes. 1

I will assess degrees of internationalization of a particular norm through key relevant international consensus achieved by UN General Assembly resolutions and reports, followed by an examination of key politically and legally binding regional and international instruments to assess whether the components of the norm were incorporated in such instruments. I will trace the history of norm emergence by outlining the most important actors in norm creation and their advocacy for key “elements” of an actual or hypothetical norm (a set of policies that recommend a behavior largely endorsed and advocated by prominent actors), and show how these were or were not included in the most important small-arms documents. A summary table is provided in each case study that lists these elements down the left-hand side, and then along the top lists all the different “arenas” (i.e. the key legally and politically binding documents) in which the set of policies was or was not expressed (e.g. see Table 3.1 in Chapter 3). This will enable a clearer perception of which institutional expressions were more complete, and what the chronological sequence of such expressions was, allowing a systematic analysis of norm development. This methodology provides researchers of norm-building processes with a road map to help examine, at the global and regional levels, how states have agreed to deal with aspects of small-arms diffusion and the problems associated with it, and also to verify how state practice changed. 12


2

3

Notable changes in state practice will be documented and assessed by examining modification of legislation/adoption of new legislation, statements to the UN General Assembly and reports to the Secretary-General and to the UN Department for Disarmament Affairs (UNDDA). The level of international attention to the emerging norm will be determined primarily through assessing whether an international instrument has been negotiated and, second, if multilateral meetings are being held in order to accelerate the international norm-building process.

The concluding chapter of the book will recast and examine the norm-emergence processes studied in the course of the book in the light of the three-tiered method of global norm-development analysis offering some propositions for the study of norms. This framework focuses on mechanisms, norms and actors without privileging any of these elements (such as non-governmental actors over governmental actors). It is hoped that this framework of norm emergence can be applied to identify norm building and international norm emergence processes in areas such as human rights, environmental issues and other problems of international security. The three-tiered method seemed to be a sensible way to break apart a complex set of processes by which norms are originated and diffused. In this process, the study looks at how non-governmental actors influence states and how states not only influence other states, but also make coalitions with non-governmental actors. It is usually taken for granted that states can be influenced to negotiate and change their preferences and the mainstream international relations literature usually takes interests as a given.36 Nonetheless, the small-arms case might prove to be a particularly instructive example for an investigation of how states persuade other states in the processes of international norm building. This is due to the wealth of initiatives proposed by some states and also by the way a coalition of “like-minded states” is central to normative advancement and the evolution of the international debate on small arms. The following similar hypotheses guide the study: 1 2 3

Non-state actors are stronger than other actors in advancing norm building on small arms. A coalition of like-minded states is stronger than other actors in advancing norm building on small arms. Norm entrepreneurs are stronger than other actors in advancing norm building on small arms.

If this book were analyzing the landmines case, it could only accept the first hypothesis, as the role of non-state actors was manifestly stronger than any other actor. However, here, given the multi-dimensional and profound complexity of norm building on small arms, the other two hypotheses were introduced to guide the research. The hypotheses embody three components or constituent parts. 13


The first is influence: these hypotheses test the weight of different types of actors’ influence in advancing new norms, and examine how influential different actors are in advancing new potential norms. For instance, one of the case studies analyzes the attempts to control the activities of arms brokers. As mentioned above, the principal event that led researchers and policy-makers to start looking at the problems caused by the illicit activities of such arms brokers was the genocide perpetrated in Rwanda in 1994. This genocide was facilitated by violations of a UN-imposed arms embargo, which resulted in a dense network of gun brokers operating from several countries who trafficked arms to the genocidaires. It was mainly non-state actors, namely research and policy-oriented activists, working in conflict situations in Africa who persuaded states of the need to promote changes to the existing laws concerning the role of arms runners and in many cases creating laws where there were none. The second component is sponsorship: who are the main actors involved in championing, advocating or promoting new norms for change? This is an endeavor to distinguish the vast array of stakeholders who became involved in the international framework to address the problems associated to the availability and spread of small arms. Finally, the third component is diffusion: the hypotheses essentially track how several actors diffuse new norms.

Norms in international relations This section reviews the literature referred to in this book, outlining relevant authors and schools of thought within the constructivist norms research in international relations, which is concerned with the role of norms and principled ideas in shaping state interest and change in state practices. The section outlines the major authors within this current of thought who were relevant to enhancing the conceptual heart of this book; among these are detailed some who were particularly influential in steering the present research. This core group of researchers, who are mostly cited here, constitute the theoretical basis for the book. Building on their work, the intention of the present study is to refine and fill in some of the major inquiries and lacunas pointed out by these authors, with ample empirical evidence offered by the case studies. This section is divided according to the main underpinning themes within the research on norms and relevant to the literature reviewed here: the three major norm-building stages, the overall conditions for norm building, the main norm entrepreneurs in the norm-building processes and an assessment of the mechanisms of norm diffusion. The stages of norm building This study is rooted in a branch of international relations literature termed “constructivist,” which focuses on norms and principled ideas. Constructivist studies started to have a significant impact on the study of international relations by the 14


end of the 1980s, by taking the analysis of the discipline a step beyond that of the realists and rationalists.37 Whereas the latter prevailing mainstream international relations theories focus on the states’ material constraints, such as power and trade, constructivism looks at the impact of norms and ideas in shaping state interests. Constructivists do not take states’ interests as a given; rather, they look at other actors and their discourses and how they shape national interests and multilateral negotiations. This trend of research is a fruitful way of analyzing the formation of norms in international affairs.38 With only a few exceptions at the beginning of the 1990s, however, there was noticeably little study of how norms emerge and diffuse.39 This was rectified throughout the decade by the constructivist studies that appeared and are referred to here. These studies attempted to fill out a conspicuous absence of analytical perspectives on the importance of norms and the role of non-state actors in interest formation in international relations mainstream theories. The debate on norms in these mainstream theories does not address the issues of preference formation and diffusion of norms.40 In addition, there is scant attention given to the mechanisms through which norms spread. Rational choice theorists see norms as reflections of the fixed preferences of the most powerful states, addressing the form rather than the content of interaction among actors.41 To go beyond this way of understanding norms in international relations, a growing constructivist literature, concerned with the role of norms in international relations and how they emerge, sheds light on how norms shape both the goals and perceptions of states’ interests, and how states manage to achieve these goals. The fundamental role of ideas and norms in the study of international relations gained importance with a sweeping “ideational turn,” which had taken place by the end of the 1980s. This debate has opened the way for the examination of social construction processes and how ideas and norm building influence international politics. In the late 1970s, mainstream scholars were turning away from analyzing the role of norms as among their central concerns, following a trend to measurement inaugurated by the rational theory school then in fashion and due to the difficulty in measuring ideas and norms. Analogies such as the prisoner’s dilemma and the stag hunt served to epitomize this trend. Even though the rational approach neglected norms, it inspired the revived debate on norms at the end of the 1980s to be more conscious of the rigor and research design. The constructivist “turn” has broadened the study of international relations beyond state-centric approaches to international relations, for example, extending neo-realist and neo-liberal thought, both of which still consider anarchy or self-help as central organizing principles and therefore neglect transnational networks of knowledge and action, and the role of non-state actors in shaping states’ interests.42 The literature on norms in international relations can be divided into two kinds: the type that treats norms as post hoc rationalizations of self-interest (mainstream theories) and another that looks at ex ante sources of action, constituting interests and shaping the identity of actors.43 This study focuses on the 15


second kind. The “return” to norms re-shaped the international relations research agenda and opened exciting new avenues for inquiry.44 The “return” to systematically analyzing norms as ex ante sources of action attempts to answer questions such as: how do norms make a difference in politics? Where do norms come from? And particularly: how do norms play a role in political change? This study follows the definition of norms as “shared expectations about behavior; a standard of right or wrong.” Norms are prescriptions or proscriptions for behavior.45 According to the group of authors who espouse this definition, in some situations norms operate like rules that define the identity of an actor, thus having “constitutive effects” that specify what actions will cause relevant others to recognize a particular identity. In other situations, norms operate as standards that specify the proper enactment of an already defined identity. In such instances, norms have “regulative” effects that specify standards of proper behavior. Norms thus define (or constitute) identities or prescribe (or regulate) behavior, or they do both. The emerging set of norms on small arms is stronger in its constitutive character than in its regulatory attributes. This means that, first, the set of emerging norms on small arms do not yet determine full outcomes; rather, they shape realms of possibility.46 In addition, due to the incipient development of the small arms subject in general, the “setting the standards” attribute of the emerging norms on small arms is stronger than their power to regulate and apply or enforce these standards. As pointed out by one scholar, the literature on international relations in general, and not only the type examined here, tends to focus on the regulative aspect of norms.47 Here, the study focuses more on their constitutive aspect. One of the most widely known definition of norms, as part of regimes, defines them as “standards of behavior defined in terms of rights and obligations,” and regimes as “principles, norms, rules, decision-making procedures, around which actor expectations converge in a given issue-area.”48 This definition is cast at the international level with an emphasis on norms as solutions to international coordination problems among states. Even though this definition holds immense explanatory power, especially for the period it was coined, it leaves unexplained how emerging norms, though not yet institutionalized within regimes, can work as powerful avenues for shaping and changing states’ interests, as well as in modifying states’ practices. Therefore, short of being part of regimes, how can emerging norms have a constituting character in the relations among actors today? This question is addressed here. Finally, the definition of norms adopted here has a strong component of norms as “shared assessments” or “collective understandings.”49 Therefore, norms embody an understanding of the proper behavior of actors associated with the collective understanding (i.e. involving more than one actor) of what this behavior is. A path-breaking approach to analyzing norm building, and the one that this study will be mostly based on, is the one that advances a “norm life cycle” and norm diffusion mechanisms associated with each norm-formation stage by 16


Finnemore and Sikkink.50 Their study is a classic for researchers on the role of norms and political change in international relations. These authors understand norms as shared assessments, which raises the question of how many actors have the same understanding of what constitutes a norm.51 The studies in the norms literature usually look at three stages of norm evolution: when norms arise, when they start to become known and accepted, and when they are adopted and internalized. Some studies fall into the category of an evolutionary or genealogical approach to norms as new ideas that are primarily promoted by norm entrepreneurs who are driven by principled ideas or self-interest.52 As Finnemore and Sikkink describe, the first stage of the norm life cycle is associated with the origins or emergence of international norms, in which the main mechanism of normative diffusion is persuasion by norm entrepreneurs. The second norm-building stage is the one referred to as “norm cascades” – the processes through which norms influence state and non-state behavior, in which the main mechanism is socialization, until the “threshold point” occurs, i.e. the point at which at least one-third of states share the same assessment of the emerging norm.53 The third norm-building stage happens when norms become internalized. Here, emulation plays a key role as a mechanism through which we can perceive how many actors share the same assessment.54 The first stage of norm emergence is associated with the prominence and influence of the norm’s entrepreneur. This study tests the influence of norm supporters or norm entrepreneurs in all the case studies examined here. The study will principally focus on the first and second stages of norm emergence, because the norm-building processes on small arms is relatively new and norms are still developing: an assessment of the third stage is therefore premature in some cases. There is a consensus in the literature on norms that, with regard to the origins or emergence of international norms, the main norm-emergence mechanism is persuasion carried out by norm entrepreneurs: Norm entrepreneurs mobilize popular opinion and political support both within their host country and abroad, they stimulate and assist in the creation of like-minded organizations in other countries; and they play a significant role in elevating their objective beyond its identification with the national interests of their government. Indeed, their efforts are often directed toward persuading foreign audiences, especially foreign elites, that a particular prohibition regime reflects a widely shared or even universal moral sense, rather than the peculiar moral code of one society.55 Empirical research posits that the work of transnational norm entrepreneurs is very sophisticated in calculating their means to achieve their goals and engaging in strategic social construction.56 In the absence of a norm entrepreneur, states might well emulate the behavior of other prestigious states that come to adopt the norm. The role of the entrepreneur is nevertheless a decisive element, 17


according to most authors seen here. The most notable example in the literature is the way in which the International Committee of the Red Cross and the Geneva Conventions came into being. A few morally committed private individuals – who did not have government positions or political power – and elite networks were able to build an international organization. They had a set of principled beliefs that forged an agenda for action.57 States are not equal when it comes to normative weight, i.e. the influence a particular state might have on others in adopting the same behavior regarding a new norm. Hence, if the United States decides to advocate or be hostile to a new norm, it is certainly more influential than most other states. Empirical studies nevertheless suggest that the achievement of the threshold point rarely occurs before one-third of states has accepted the norm.58 It also matters which states adopt the norm (i.e. the normative weight of each state is an important factor). The “contagion” effect for norm acceptance is a process of international socialization intended to bring about change in the conduct of reluctant states. Socialization, therefore, is the dominant mechanism for norm acceptance and can occur in the following sequence: emulation, praise (for behavior that conforms to group norms) and ridicule (for deviation from these norms). This last dimension of norm building, if applicable to the case at hand, is less relevant to the case of norm building on small arms and more so to the landmines normbuilding process, where, for instance, to shame the deviant norm-breaking behavior of the United States (after the threshold point had been achieved) in not wanting to ratify the Ottawa Treaty banning landmines, the ICBL adopted the slogan, “USA, don’t walk away!” Finnemore and Sikkink state that, in most cases, for an emerging norm to achieve the threshold point, it must become institutionalized in the settings of international organizations.59 They also state that empirical studies do not advance criteria indicating when such a threshold point is achieved. Therefore, this study will assess in each case study when, and hopefully why, the threshold point occurred through the following procedure, already primarily outlined on pages 11–14. First, it will test if the norm became institutionalized in an international setting by looking at whether the components of the norm analyzed were or were not included in two key UN reports: by the Panel of Governmental Experts on Small Arms of 1997 (abbreviated to 1997 Panel Report in this book) and by the Group of Governmental Experts on Small Arms of 1999 (1999 Group Report).60 This will be a useful way to gauge shared assessments within the UN General Assembly. Second, in order to assess if a critical mass of states share the same understanding regarding an emerging norm, the study will: see if the components of the norm are mentioned in at least half of the regional and international documents analyzed in each case study; and examine notable changes in state practice through adoption or modification of legislation and through statements to the UN General Assembly and to the UNDDA.61 However, it will be demonstrated that, contrary to what the theory espouses, only in one of the six norm-building cases seen here is the influence of norm 18


entrepreneurs successful (in the case of the norm on regulating weaponsbrokering activities); in another case, the efforts of the norm entrepreneur were not successful, even with a previously existing enabling normative framework (in the case of the ban of the sale of weapons to non-state actors). In four out of six cases we must reject the widely held theoretical assumption that norm entrepreneurs alone are key to the first stage of norm building, i.e. the appeal of principled ideas as promoted by the norm entrepreneur is not sufficient. The first stage of norm building usually comprises large efforts to disseminate information and to set the new agenda.62 This entails active and manipulative persuasion by the norm entrepreneurs to inform as many other actors as possible about new norms and make these new norms resonate within the already existing system of norms. As will be demonstrated, this effort of disseminating information is not only carried out by individual entrepreneurs, but by groups of like-minded states or NGOs. What is more, as will be seen, the generation of knowledge will in all cases precede norm building regarding small arms, and it is probably the single most important step in norm building. Norm-building processes in small arms are inextricably linked to the evolution of the debate in the international security agenda. The rise of the debate on small arms as a topic of importance in the international security agenda happened in two phases. The first phase, from the beginning of the 1990s until 1998, marked the establishment of small arms as one of the most important topics on the agenda of states.63 At this stage, information and knowledge regarding many of the aspects of small-arms availability started to be generated and disseminated, and normative change slowly started to occur, from a total absence of debate and policy action about the problems associated with smallarms diffusion at the beginning of the 1990s, to active debate and the contours of norm-building processes that started to take place by 1998. The second phase took place from 1999 to 2001. During these years, international awareness of the problems caused by unrestricted small-arms spread was consolidated, and many policies were proposed and norm building continued to varying degrees in areas such as weapons destruction, transparency in arms transfers, regulation of illicit arms-brokering activities, ban of the sale of weapons to non-state actors, weapons marking and tracing, and regulating arms civilian possession (i.e. the case studies examined in this book). In the first phase, as will be demonstrated, the role of two main norm entrepreneurs is decisive: Michael Klare in the dissemination of the idea that research and action must focus on a new armsmanagement framework paradigm that would include small arms; and Edward Laurance in the need to engage NGOs in an international networking process involving coalition building with like-minded states. Nonetheless, in the second phase of the rise of the small-arms debate in the international security agenda, when the emergence of norms took place, we can only attest the successful influence of a norm entrepreneur in one single case, as has been mentioned. The presence of a previously existing normative structure is a helpful enabling condition for norm diffusion.64 Authors also call this phenomenon 19


“adjacency claims or path dependence,” in which activists work to frame their issues in ways that make persuasive connections between existing norms and emerging norms, in order to generate a more conducive environment for norm acceptance, e.g. in the case of female genital mutilation. When the cause was called “female circumcision,” it made little progress, largely because it was associated with male circumcision, which is generally considered to be positive. However, when the practice of female circumcision was reframed as “female mutilation,” it was directly associated with violence against women and was more successful in awareness-raising processes.65 Some authors call the link between new norms and a previously existing normative supporting framework “coherence with already existing norms,”66 whereas others call it “resonation.”67 In addition, the literature also argues about “world time context factors”; i.e. factors that provide background enabling political conditions that foster normative change.68 As mentioned, the second norm-building stage is usually described as one where the norm ideally must fit into the previously existing normative setting. Thus, the emerging norm must cohere with the environment and norms already in place. As will be demonstrated here, this can only be successfully seen in some instances of norm building and it will be rejected in others (see the last chapter in the book). The third norm-building stage is usually understood to include behavior such as emulation or imitation of others, and the ensuing change in the discourse and practices of actors. The rise of the small-arms debate was preceded by an already existing embryonic regulatory framework for conventional weapons, the UN Conventional Arms Register. Some observers consider that, upon the establishment of the register, the problems caused by small arms started to attract the attention of world leaders.69 In the rise of the issue of small arms onto the international security agenda, there were enabling world time context factors that were helpful in creating an environment conducive to this issue to emerge as a topic of concern. The aftermath of the Cold War has proved to be a fruitful moment for the analysis of the role of norms. Many empirical and theoretical studies have appeared that render the interpretation of phenomena, in the light of norms and ideas, a fertile ground for re-thinking the relations among states.70 Moreover, there was relative optimism regarding the power of multilateralism and the intensification of transnational advocacy networks concerning many subjects, such as landmines. As already mentioned, the success of the ICBL gave an extra motivation to the ongoing yet incipient debate on small arms. As will be demonstrated in Chapter 2, the international debate on small arms currently underway was particularly carried out by like-minded governments, when in 1997, the landmines treaty came to the fore. This encouraged the formation of the International Action Network on Small Arms (IANSA) in 1998, also energizing the debate on other levels. In addition, some of the literature looks at the establishment of international networks to generate broad support for norm building within, across and outside government channels.71 The establishment of networks can be observed in the 20


small-arms debate with the formation of IANSA in 1998. In the case of landmines, the ICBL was a successful case of international networks constituting a powerful avenue of influence and coalition building of key actors.72 The ICBL was also decisive in bringing the Ottawa Treaty to fruition. A very compelling approach to the study of diffusion of norms is seen in the activities of so-called “transnational advocacy networks” (TANs). These are networks of activists, “distinguishable largely by the centrality of principled ideas or values in motivating their formation.”73 The actors constituting a TAN can be international or domestic non-governmental research and advocacy organizations, local social movements, foundations, the media, churches, trade unions, consumer organizations, and intellectuals; regional and international inter-governmental organizations; and executive or parliamentary branches of governments. These actors not only participate in new areas of politics, but also help to shape them, creating political space for pressure. Even though the role of transnational actors is not new, what makes their work in the twenty-first century particularly effective is the advent of the World Wide Web and the Internet, which have created a new, additional and unique space for political pressure beyond states’ borders that was non-existing in the transnational movements prior to their appearance.74 However, as will be seen in this study, the TAN in the small-arms case, i.e. IANSA, in contrast to the ICBL, did not fulfill this breakthrough role in the norm-building process. Conditions for norm diffusion How do actors involved in the international small-arms debate go about diffusing the norms they advocate? Finnemore and Sikkink found that a lacuna in the study of norms is the absence of hypotheses indicating which norms matter: only a few authors have suggested some conditions under which norms are of importance in changing state practice and affecting state interests. There are five noteworthy conditions that can be outlined here. The first condition is domestic legitimation, where the material interests of domestic actors may create a significant enabling condition for norm building and for international norms to integrate on the domestic level.75 The authors who look at how norms diffuse within domestic arenas make a distinction between norm diffusion in the domestic and international arenas and criticize those authors like Finnemore and Sikkink – who look at norm formation at the international level – for neglecting the literature that examines domestic forces.76 However, this study will show that such a distinction is largely artificial and, when one looks at the empirical evidence, one finds that these two arenas are inextricably intertwined. A major factor explaining this connectedness between the domestic and the international realms is the increasingly easy flow of information amongst actors, the mounting easiness of acquiring information and the power of the Internet in linking the many actors involved, making their activities more and more seamless. 21


Another explanatory factor connecting the domestic and international arenas is that states experiencing domestic turmoil, or those insecure of their international status, might feel compelled to adopt a new norm or embrace normative/ideational change.77 For instance, one may cite the case of Mali in the first half of the 1990s. This was a typically insecure post-conflict country that chose to embrace a profound normative change. After a UN team’s visit to Mali, former President Alpha Oumar Konaré successfully negotiated the enactment of the 1998 Moratorium on Importation, Exportation, and Manufacture of Light Weapons in West Africa. The moratorium was signed by the 16 West African States and banned the production, import and export of arms, initially for three years.78 The most prominent examples of domestic legitimation of new norms will be seen most notably in the cases of the norm on weapons destruction and that on regulating civilian arms possession. The second condition for norm diffusion is prominence.79 The acceptance of a norm can originate either from the quality of the norm itself or from the norm entrepreneur promoting it.80 Therefore, due to the qualities of influence and popularity of either the norm promoter or the norm itself, a state might be influenced to accept a norm. In this case, an outstanding example is the International Committee of the Red Cross, whose prestige acted in the promotion of an international norm to ban landmines. In the analysis here, as will be shown, there is no attested case of successful norm diffusion by “famous entrepreneurs.” The only instance of an eminent norm entrepreneur diffusing a norm was the case of the potential emerging norm on banning the sale of weapons to non-state actors, which actually failed to diffuse. The only successful case of individual norm entrepreneurship seen here stemmed not from the qualities of prominence of famous entrepreneurs, but rather as a result of their tireless efforts and advocacy (see the chapter on the norm regarding weapons brokers) – here called “hard advocacy.” The norm promoter’s prestige can also generate opposite results, as will be seen: the United States’s opposition to the norm of civilian gun possession regulation and to the norm on banning the sale of weapons to non-state actors during UN 2001 resulted in these aspects not appearing in the Program of Action. The third norm diffusion enabling condition is related to the intrinsic characteristics of the norm in question.81 Norms that are more universally encompassing are more likely to be accepted; for instance, norms that are directly connected to prohibiting bodily harm to innocent bystanders are extremely powerful in mobilizing transnational support.82 One of the single most distinctive features of the norm banning landmines is that it recognizes the indiscriminate bodily harm landmines cause, even years after a conflict is over. Most of the norm formation processes examined in the case studies, directly or indirectly, have this component of preventing bodily harm to civilians. A fourth enabling condition for norm diffusion is adjacency claims or path dependence (as mentioned before).83 Norm entrepreneurs attempt to frame their causes in ways that draw compelling links between existing norms and emerging norms to generate a more conducive environment for acceptance. Virtually 22


every empirical study analyzing the spread of norms focuses on the two variables of entrepreneurship and coherence with already existing normative frameworks. This phenomenon has also been called “coherence with already existing norms” or “construction of cognitive frameworks”:84 “New norms never enter a normative vacuum but instead emerge in a highly contested normative space where they must compete with other norms and perceptions of interest.”85 However, as in most cases examined here, contrary to what the literature advances, there was no previously existing enabling normative framework for norm diffusion, and certain norms examined here effectively entered a normative vacuum, i.e. there were no normative standards in existence and the norm makers created a space for norm emergence through hard advocacy and coalition building (see Chapter 3, which deals with weapons destruction, and Chapter 4, on controlling illicit brokering activities). The one case where there was a previously existing normative environment was related to the norm of transparency regarding small-arms transfers, and it was one of the weakest emerging norms. There was a resonating normative background within the international efforts to promote transparency in weapons of mass destruction, which then translated into transparency in conventional weapons. These efforts, which began slowly during the 1960s, became well known in the 1990s, with the establishment of the UN Conventional Arms Register. But even though there was a previously existing resonating background, this norm diffused only weakly at the international level. A fifth condition for the diffusion of norms is the world time context.86 World historical events such as major wars and economic crises might work as triggers or catalysts for new norms and ideas. This has also been called “perception of crisis” and involves shock events that are perceived as being crucial in providing the impetus for normative change.87 The Iraqi invasion of Kuwait in 1990 is generally seen as a shock event that spurred international normative change on transparency policies regarding conventional weapon build-ups, and the UN Conventional Arms Register is an embryonic framework addressing these. However, as is demonstrated in the chapter on transparency, it cannot really be said that this was a shock event, even though it catalyzed ongoing efforts to increase transparency in the conventional arms trade. Rather, it spurred on a process already under way. In the case of the international emerging norm on controlling brokers, it can be seen that the genocide in Rwanda fundamentally contributed to the initiation of international action on norm formation, and to the small-arms debate in general. Creating norms: norm makers Several authors in the literature on norms diffusion have drawn important links between the processes of norm emergence and diffusion and the role of actors in these processes. This section identifies five groups of actors who may act as norm makers. The first of such groups consists of individuals grouping together 23


to form so-called “epistemic communities” – this concept was coined at the beginning of the 1990s and influenced virtually all studies discussed here. The second group is made up of the already cited “transnational advocacy networks,” which should be highlighted, although they are not central to the small-arms case per se. The third group, as discussed earlier, consists of individuals who act as norm entrepreneurs. The fourth group comprises NGOs, with their increasing influence in international relations. As will be noted, this is one more intricacy in examining the small-arms debate, as it is not an NGO-led debate, as was the one on landmines, but much more a complex combination of cooperating and interacting actors. Finally, the last group consists of states, here understood as “like-minded states.” The premise that knowledge-based epistemic communities have a powerful agenda-setting capacity was developed in the early 1990s and then found resonance in virtually all studies addressing norms.88 Most scholarship on norm diffusion makes at least a passing reference to the influence of epistemic communities in diffusing or creating new norms in the domestic or international arenas. Proponents of the epistemic community highlight that the way in which decision makers define state interests and formulate policy on technical and complex issues is related to how the issue is framed by the advisers that policymakers turn to in order to lessen conditions of uncertainty in states’ pursuit of interests. Researchers seek to examine how networks of experts define complex problems, so helping states to identify their interests, and how they frame the issues for the public debate. Epistemic communities are sources of policy innovation, channels through which policies diffuse, and catalysts in the political and institutional processes leading to behavior change. Such communities also contribute to increasing the transparency of action and development of shared judgments converging around policy coordination. Therefore, “[e]pistemic communities are channels through which new ideas circulate from societies to governments as well as from country to country.”89 This study shows that, in the small-arms debate, epistemic communities worked in two cases in which states attempted to lessen conditions of uncertainty in their pursuit of their interests. The one was prior to the rise of the issue itself: as mentioned, the previously existing epistemic community of the conventional arms trade “transformed” itself into a community looking at small arms, and this was crucial for the elevation of the issue into the international security agenda. The other occurred after the consolidation of the issue in the agenda, with the Geneva-based Small Arms Survey, which created a large international network of researchers and practitioners that states turn to for advice (see the chapters on weapons destruction and weapons brokers, and Chapter 2). In the case of small arms, it was the conventional arms trade epistemic community that worked as a catalyst for research to be refocused from weapons of mass destruction and larger conventional weapons systems to smaller conventional weapons systems. Nonetheless, the formation of a specific small-arms epistemic community happened when the issue was already established within the international security agenda. The 24


Small Arms Survey functions as a clearing house that unites the many researchers around the world devoting efforts to profiling the problems caused by small-arms diffusion and devising measures to tackle it, ultimately constituting an “epistemic community.” Another very fruitful approach to this link between norm diffusion and the role of actors within the process examined here is the study of the diffusion of norms through TANs, mentioned earlier in this chapter. These are networks of activists, distinguishable largely by the centrality of principled ideas or values in motivating their formation, which not only participate in new areas of politics, but also help to shape them. In the case of small arms, the existing TAN, i.e. IANSA, cannot really be deemed essential to norm-building processes, as the ICBL was. Albeit significant for constituting a website informing the members of relevant small-arms initiatives and activities, especially before the UN 2001, IANSA was a relatively weak actor in the norm-building processes, as will be seen in the case studies. As already extensively outlined here, the norms literature underscores the centrality of norm entrepreneurs in norm-building processes.90 In the case of norm building on small arms, as was discussed above, this is not really manifest in the main norm-building phase (1995–2001), but more markedly in the period 1990–5, when agenda setting and awareness raising were taking place (see Chapter 2). My study will be examining the ever-widening role non-governmental actors have in norm building, exerting influence through learning processes using different mechanisms with the aim of diffusing information, raising awareness and monitoring for compliance. In the case of small arms, European NGOs (more than American), South African and Brazilian NGOs have been influential on the international debate. Their work will be examined in detail in the case studies. Most of the literature on norms points to the visible impact of NGOs on norm building or, especially, in political change.91 Increasingly, such NGOs are transnational or make the effects of their work felt across borders. This is especially so in the case of NGOs dealing with small arms and light weapons. This issue has characteristics that transcend one country, and the NGOs dealing with it usually have an international profile (see the chapter on weapons destruction). NGOs can play a role in information awareness and exercise the ability to quickly and credibly generate politically usable information and move it to where it will have the most impact (see the chapter on marking and tracing, for instance). In the landmines case, the influence of NGOs is more manifest than in small arms. This is another complexity of analyzing small arms, and I do not deem the role of NGOs as more influential or progressive than that of states: as in the case of small arms, some like-minded states assumed as important a role as some NGOs in the processes of norm building. This contrasts with the case of landmines, where manifestly NGOs were the driving force in the norm-building process. In the late 1980s and early 1990s, NGOs began documenting the problem of landmines and numerous studies appeared. In 1993, the same year 25


that studies started to appear on small-arms spread (see Chapter 2), a US State Department study estimated that landmines kill or injure 150 people per week. Then revised study from the same source claimed that landmines maim or kill an estimated 500 people per week. The State Department reported that the revised estimates testify to the role of international activists as catalysts for informing states. In addition, the landmines case confirms that a perception of a crisis or shock is a crucial factor in precipitating ideational and normative change. In the case of small arms, despite the relative prominence NGOs assumed, they could not act alone. States were as much part of the efforts, because the small-arms debate aroused strong feelings regarding national interest, as these weapons have many legitimate uses.92 A comparison between norm-building processes in these two cases of international security is done in the Table 1.1. Finally, this book will also be focusing on the role of states in norm building. The literature is relatively silent on the role of states or groups of like-minded states that might play a progressive role in changing other states’ practices or in fostering new international norms.93 All the case studies will attest the varying degrees of influence exercised by states in regional and international normbuilding processes. In particular, all cases include a section entitled “Tracking institutional norm building,” where it will be clearly outlined which were the most important states, advocates or stumbling blocks in the norm-building processes regarding small arms. Table 1.1 Comparing two prominent cases of international norm building in international security Landmines

Small arms

Clear international campaign goals

Multiple campaign goals

Humanitarian focus (single focus)

Fragmented campaign (many points of focus)

Delegitimization of all aspects of use as a chief objective

No way to delegitimize many of the aspects of use

Strong leadership

Multiple leadership centers

Separate multilateral negotiation forum

Multilateral negotiation within the UN

Strong, unique, previously existing, enabling, normative framework (IHL)

Non-existing or weak, previously existing, normative framework

Unwavering norm entrepreneurs

Diffuse or non-existing norm entrepreneurs

No strong NGO “hard advocacy” opposition

Much strong NGO “hard advocacy” opposition

A single, international, legally binding treaty

Multiple politically and legally binding treaties and conventions

One norm-building pathway

Multiple norm-building pathways

26


Mechanisms for norm diffusion The characteristic mechanism of the first stage norm emergence is persuasion by norm entrepreneurs. Norm entrepreneurs attempt to convince a critical mass of states (norm leaders) to embrace new norms. The second stage is characterized more by a dynamic of imitation as the norm leaders attempt to socialize other states to become norm followers. The exact motivation for this second stage where the norm “cascades” through the rest of the population (in this case, the states) may vary, but we argue that a combination of pressure for conformity, desire to enhance international legitimization, and the desire of state leaders to enhance their self-esteem facilitate norm-cascades.94 According to the literature, the main norm-diffusion mechanisms are persuasion, individual advocacy, social pressure, constitutive cognitive frames,95 emulation,96 reputation,97 socialization, teaching, discourse, political rhetoric,98 information, expertise, professional training,99 lobbying,100 iterated behavior, habit101 and coalition building.102 Arguably, persuasion and individual advocacy springing from norm entrepreneurship are the most important mechanisms for normative change. Some authors have argued that persuasion should be considered fundamentally important to norm building and it is argued to be the single most important mechanism for changing actor preferences.103 There is also the argument that normative claims become more powerful and prevail by being persuasive.104 However, this study finds that “persuasion” is only vaguely discussed in the literature to be applied in the norm-building cases tested here. In this study, therefore, I call “persuasion” “hard advocacy” and socialization usually takes place through diffusion of reliable information. I define “hard advocacy” as: consistent and systematic efforts to generate credible information and teach other actors about the need for change. The findings in this study go against the proponents of persuasion and individual advocacy as the central mechanisms for norm diffusion. Instead, it was found that all norm-building processes must be preceded by information dissemination, and hard advocacy and coalition building are more central to norm building than the literature believes. As mentioned, empirical studies suggest that the threshold point for norm emergence does not occur before one-third of states have accepted the norm, and it also matters which states adopt the norm. As Finnemore says, “[w]hat constitutes a ‘critical state’ will vary from issue to issue, but one criterion is that critical states are those without which the achievement of the substantive norm goal is compromised.”105 This is not really applicable in one notable instance: the norm-building process on civilian gun possession. In this case, despite the reluctance of the United States to accept the inclusion of clauses setting forth international standards for regulating when civilians can bear arms, this norm is strongly emerging and is enshrined in domestic laws in most countries. 27


Therefore socialization, according to the literature, is the dominant mechanism for norm acceptance and can occur in the following sequence: emulation, praise (for behavior that conforms to group norms) and ridicule (of deviation), as seen earlier. These steps can be identified in the strategies adopted by the ICBL. The last phase, ridicule of deviation from an agreed norm, can be seen in the widely disseminated poster of a child victim of a landmine and the slogan, “USA, don’t walk away!” Nonetheless, these steps are less manifest in the case of small arms (see all the case studies). It is interesting to note that in the two cases mentioned above, where the norm-diffusion mechanisms are not really manifest (namely, transparency and the ban of the sale of weapons to non-state actors), these norms failed to diffuse. The mechanisms for norms diffusion must be preceded by the dissemination of information for initiating the agenda-setting and issue-framing processes. Therefore, this involves the generation of knowledge about the issue and the dissemination of information, and only some authors underscore this important point.106 In most cases examined here, information generation as a mechanism for norm diffusion preceded norm formation: A crucial way that transnational actors have sought to teach states that landmines are a problem is through generating and publicly disseminating information to governments, and wider society alike. In the absence of such instruction, wide recognition of the staggering number of landmines worldwide and the number of suffering victims would not have been apparent in the first place.107 In the case of small arms, the studies that appeared during the first half of the 1990s, as detailed in Chapter 2, were crucial in outlining the problem, raising awareness regarding the spread of small arms. Subsequent work of promoting efforts to curb it was essential to socialize new actors and encourage them to be engaged in the process and to disseminate information, so building the coalitions amongst actors that actually promoted norm emergence and diffusion.

28

2 NORM-BUILDING PROCESSES IN THE EVOLUTION OF THE SMALL-ARMS QUESTION ON THE INTERNATIONAL AGENDA

This chapter will trace how the small-arms issue rose as a subject of importance within the international agenda throughout the 1990s, and beyond.

The enlargement of the concept of security and changes in arms-trade patterns after the Cold War Human security The end of the Cold War and the first Gulf War were two major factors influencing changes in arms control and disarmament negotiations that are directly linked to the growing awareness regarding small-arms availability and that subsequently triggered the norm-building processes examined in this study. After these two events, the Ottawa Treaty banning landmines and the prospective new efforts to address the spread and availability of small arms and light weapons marked a new trend, where many actors other than states started to be involved in norm making and the negotiation of agreements on prominent international security issues. One of the driving forces behind this new trend is an enlargement in the traditional concept of security, where the security of people also has a place of concern in the security policy of states. Therefore, the appearance of the concept of “human security” was a ground-breaking contribution to disarmament politics after the Cold War:1 The emergence of a set of “societal” or “human security” concerns that focus on communities or individuals within the state changed this [traditional] equation. Many human security concerns – understood as achieving freedom from fear by evacuating the threat of violence from social, political and economic life at local, regional, and international levels – implicate small arms and light weapons, including such issues as promoting and safeguarding human rights (security from state 29


violence), protecting minorities (from communal violence or repression), fighting organized crime and random violence, combating terrorism and ensuring economic security.2 Gerd Oberleitner has argued that human security may become a new organizing principle of international relations, and that it has already greatly contributed to normative change in international law making.3 Canada, a leading adherent of the concept, embedded it in its foreign policy after the Cold War and advocated for a heightened concern for the protection of people in (vulnerable) communities, considered the security of the individual as a chief motif for achieving peace and security, taking into account non-traditional threats such as state failure and drug trafficking in the making of international politics, engaged with NGOs as important actors in the making of international politics and resorted to a new style of diplomacy to negotiate multilateral issues.4 This last point is of great importance for new issues on the international security agenda like landmines and small arms. Perhaps the single most important reason for the success of the multilateral negotiations on landmines was the resort to a faster and more efficient diplomatic track outside the UN. This did not happen with the small-arms issue, which was initially allocated to the First Committee of the UN. As long as small-arms negotiations take place within the activities of the First Committee, their normative aspect will be rather limited by an arms control type of framework, which is quite distant from a purely human security approach.5 As the human security concept has evolved in the international agenda, some concern has been voiced regarding an excessive enlargement of its meaning. Some have argued that Canada should exercise its leadership in order to prevent the concept of human security being used as a justification for the unjust use of force – many believe that normative frameworks and the strengthening of governance at the local level are more robust measures for the attainment of human security than military intervention.6 Keith Krause has warned that the allinclusive broadening of human security to include freedom from want in all its aspects is counterproductive because it could hinder cooperation on such issues as AIDS instead of eliciting the desired deeper understanding of the issue.7 In the same article, Krause also espouses the view that the concept of human security must be defined as freedom from the threat or fear of armed violence for the achievement of a strong action and research agenda. If the concept of human security were incorporated in states’ foreign policy in such a way, he adds, it could be linked to a strong commitment to current normative arrangements and evolving international norms that would free people from the fear of armed violence. The questions of small arms and light weapons, and landmines constitute new trends on international security politics, as these issues are at the intersection of disarmament, human rights protection, public health and the reduction of violence. Within the enlarged concept of human security mentioned above, and despite the fears raised, these issues are indeed becoming increasingly prominent on the international agenda, representing a new paradigm in arms control. 30

NORM-BUILDING PROCESSES

A new paradigm in arms control During the Cold War, arms trade and arms control patterns were mostly dictated by the antagonism that existed between the United States and the Soviet Union. There were very few arms suppliers and many recipients in the two antagonists’ respective spheres of influence. After the end of the Cold War, there were perceived changes in the arms trade, from a few mostly governmental suppliers to an increasing number of suppliers outside government. The patterns of supply and demand for arms were no longer only dictated by the concerns of the superpower rivalry, as latent conflicts became apparent in many parts of the world, as well as new perceptions of security. This study is interested in the gradual evolution that took place after the end of the Cold War, especially until 2001, when states and other actors initially concentrated their efforts on controlling weapons of mass destruction and then, after the Iraqi invasion of Kuwait, also started to pay attention to conventional weapons. This trend was confirmed by the creation of the UN Register on Conventional Weapons, which was followed by a trend to tackle smaller weapons systems, i.e. landmines and then small arms and light weapons. The study focuses on this last trend in particular, i.e. how states and other actors previously only interested in making norms to regulate weapons of mass destruction started to create norms on small arms. The study attempts to understand how, progressively, states managed to craft new norms to incorporate these developments. The time frame examined here mostly falls within the period 1990–2001, as these were the initial years of norm building with regard to small arms; and, in addition, the decade after the end of the Cold War seemed to be a key moment to analyze the role of norms and principled ideas in international relations, as well as the role of new actors in domains previously thought to be the restricted sanctuaries of states.8 The successful making of the Ottawa Treaty banning landmines epitomized a new trend in international security. The formation of transnational advocacy networks in the security domain, such as the one on landmines, and the development of such a network on small-arms issues, is a new development. In terms of norm development in arms control, one can imagine a pyramid representing a dense norm development regarding a certain type of weapon at its top, but as one goes down the pyramid, there are fewer and fewer norms.9 The norms and treaties at the top regulate weapons of mass destruction; but toward the middle and lower parts, there are those regulating conventional arms and small arms and light weapons, with a only a very incipient international political and legal framework, i.e. there are very few treaties and documents regulating their transfers, although there is a growing trend to do so. In the initial stages of this trend, the international community developed the UN Conventional Arms Register by the end of the 1990s and the Wassenaar Arrangement in 1994. These two initiatives, albeit setting only voluntary obligations, were the first efforts on norm building on conventional arms transfers (see Chapter 5). As will be demonstrated, these initiatives affected norm building on small arms. If one looks at the top of the 31


pyramid in the light of an assessment of how influence takes place in norm building, one could ask the question: did existing international norms on weapons of mass destruction create a conducive environment for norm building on small arms and light weapons? During the Cold War, many international norms emerged to address the dangers of the possible use of weapons of mass destruction: The domination by the major powers of the structures of international security can be seen even in multilateral agreements like the NPT. As the established post-war structure could be upset by the proliferation of weapons of mass destruction, multilateral arms control in post-war era came to focus on those weapons.10 This reality was defined by the existing ideological and political framework of bipolarity between the United States and the Soviet Union. The dismantling of this bipolar political and ideological framework resulted in new possibilities and realities for controlling non-strategic weapons, i.e. conventional weapons in general, and small arms in particular. Since then, there has been a growing awareness that the weapons that are responsible for most of the killings not only in intrastate conflicts, but also generally in the rising armed violence in most parts of the world, are small arms rather than weapons of mass destruction, which have scarcely been used. In the processes of international norm building on small arms, apart from the dissolution of bipolarity, what are the consequences of the end of the Cold War that might have contributed to norm building? One consequence has been the emergence of latent conflicts that before were, to a certain extent, concealed within the American or Soviet spheres of influence. There has also been a change in the nature of conflicts to mostly intrastate conflicts, in which the weapons of choice are mostly (or only) small arms and light weapons, because they are less costly, easy to transport and use, and require little or no maintenance: The Cold War competition between two strategic alliances, in which arms were made available primarily for global political and strategic purposes, has largely disappeared. Major weapons transfers by the principal exporting states are now often motivated primarily by economic and employment benefits. Military, strategic and political factors have become secondary considerations in many instances and are sometimes completely ignored. The human costs of arms transfers have, until recently, been considered of little importance.11 Another consequence of the end of the Cold War is the massive availability of “surplus” stocks, which are no longer necessary to cope with the previous high levels of military readiness created by Cold War requirements. This phenome32


non has heightened awareness regarding the indiscriminate use of small arms and light weapons as a result of the sudden availability of such weapons (see Chapter 3):12 Ironically, these surplus arms are the by-product not only of reduced military budgets and forces in the industrialized countries but also of successful arms control agreements that have required members of NATO and the former Warsaw Pact to eliminate hundreds of thousands of weapons from their inventories.13 The international small-arms trade in the aftermath of the Cold War had a particularly notable feature:14 it changed the established pattern that had previously divided the international arms trade into a handful of suppliers and many recipients. There are many more countries and actors (illicit brokers) that can play the role of suppliers than in the trade in major conventional weapons.15 Arms trade patterns existing before the Cold War therefore do not necessarily apply to the small-arms and light-weapons trade, in which new patterns are mostly manifest after the Cold War, and which in turn leads to the situation where a new paradigm is necessary in arms control that treats small arms as a separate arms-control issue.16 Researchers concerned with small arms in the wake of the Cold War have argued that such a paradigm was emerging in the arms-control community by the mid-1990s.17 Nowadays, small arms is a distinct field of research and action within the international community. As discussed in the preceding section, the streamlining of the concept of human security to an understanding of freeing individuals from the threat and fear of armed violence can enhance the contours of a new paradigm. However, such a paradigm cannot be limited to being only a new armscontrol paradigm, but has to go beyond arms control per se, internalizing new organizing principles and also using other tools, within a strong human-security framework, of fast-track diplomacy and giving attention to suffering on the ground, i.e. where conflicts and violence actually take place, complementing the work of multilateral diplomacy done in New York and Geneva, but not being restricted to it. There is therefore no contention that arms control is still necessary. As some observers have noted, multilateral cooperation is necessary to govern the development, production, and use of threatening technologies, i.e. arms control. What is obsolete are the Cold War ways of pursuing it.18 Not only is a new armscontrol paradigm indispensable, but it must be broadened to include small arms as an integral part of it, and include new tools of diplomacy, while vigorously engaging other actors beyond the state. Within this context, there is an urgent need for a reassessment of the expectations of multilateral disarmament and arms controls. The organizing principle of arms-control agreements during the Cold War was to create relations and build confidence where there were none. The new organizing principle has to be the attainment of human security: freeing people from the threat of violence, which includes terrorist threats as well. 33


Dahinden has defined the new contours and tools of such a reassessment as follows. First, implementation must assume center stage, i.e. building capacity regarding actual implementation and the capacity to comply. Second, the already existing regimes on arms control should be preserved. Third, implementation should be bottom-up through practical steps without legally binding regulations (in the case of small arms, the “regime” created by the politically binding Organization for Security and Cooperation in Europe (OSCE) agreement on small arms, to be examined extensively below, is illustrative). Fourth, the option should exist for politically binding agreements to lower the threshold of expectations and adherence. Fifth, groups of like-minded states should be created to counter and get around the need for a “consensus vote.”19

The initial impetus for norm building regarding small arms, 1990–5 The rise of the small-arms and light-weapons debate and the impetus for norm building that followed onto the international agenda can be understood in terms of two paths that happened in parallel: one was a “knowledge-generation process” and the other was an “acknowledgement of the problem” that took place within the UN General Assembly. The first path, “knowledge generation,” which carries the impetus for the rise of the small-arms issue, was triggered by scholars and practitioners, here called “the conventional arms trade epistemic community.”20 The first articles to be published concerning the issue of small arms appeared in 1993. These scholars and practitioners were in a position that allowed them to perceive that changes in the arms-trade patterns were affecting the types of weapons that were being used in conflict and violence around the world, and that there were three overarching trends in this process (specified previously and to be explored further): • • •

a change in perceptions of state security; a shift of attention from weapons of mass destruction control to conventional weapons; and a change in the types of conflicts and wars being waged in the aftermath of the Cold War.

The second path, “acknowledgement of the problem,” happened within the UN General Assembly through a series of key resolutions that reflected states’ willingness to deal with the illicit trafficking of arms. This explains the framing of the illicit dimension of the problems associated with small-arms spread, to which most of the attention of multilateral negotiations have focused to date. Triggering this process was a resolution proposed by Colombia in 1988, which will be studied in greater detail below. These two paths, coupled with the three overarching trends outlined above, opened the way for small arms to become a subject of prominence on the international agenda in the 1990s. 34


As will be seen, a complex process of norm building happened gradually throughout the 1990s. The first part of this section will demonstrate how the role of the conventional arms trade epistemic community was instrumental in generating the initial impetus and in highlighting the contours of a new aspect of the arms trade and arms control emerging in the post-Cold War period. The discussion will focus in particular on individuals who were key in promoting and influencing norm building in many arenas of the first path, the knowledge generation process. The second part of this section will show how the second path, the acknowledgement of the process within the UN, started slowly, especially during the later 1980s, through UN General Assembly resolutions, and accelerated throughout the 1990s. The creation of the UN Panel of Governmental Experts on Small Arms in 1995, followed by the decision to convene an international conference on illicit trafficking, UN 2001, catalyzed the state-led side of the entire norm-building process. The role of the conventional arms trade epistemic community The creation of “expert” knowledge is a necessary condition for collective action to emerge.21 The regional and international norm-building processes to tackle small-arms and light-weapons availability, as well as the various international and regional initiatives and actions, were preceded by the dissemination of knowledge, as most of the case studies examined will demonstrate. This information highlighted the problems connected to the spread and proliferation of small arms, and was also connected to the changed perceptions of security emerging in the aftermath of the Cold War. In February 1994, a meeting of academics was called by Michael Klare – professor of peace and world security studies at Hampshire College in Amherst, Massachusetts, and director of the Five College Program in Peace and World Security – and took place at the American Academy of Arts and Sciences. This was effectively the point at which the epistemic community of conventional arms trade studies started looking at the small-arms question. The first book on small arms was published as a result of this meeting, Lethal Commerce: the Global Trade in Small Arms and Light Weapons, to be discussed in the last part of this section.22 This was a seminal meeting because it crystallized the realization by a core group of academics that something was different about small arms and that this was not just another meeting of the conventional arms trade research community.23 The participants of the 1994 meeting were experts in the conventional arms trade (i.e. state-to-state arms transfers). What emerged from that meeting was the realization that in many places in the world where conflicts had ended or flared after the Cold War, the problem was not state-to-state arms transfers, but rather arms already on the ground, and hence that weapons availability was a much bigger problem than arms transfers. In situations like Mozambique and South Africa, where weapons were both freely available and not properly managed, the people who initially supplied the weapons could not be held 35


accountable, and people were suffering. This is in some ways analogous to the landmines question. In the supply-dominated world of state-to-state transfers of conventional arms, one could say that states are responsible for any problems that arose. In the case of landmines, that was not possible early on, as there was no way to determine who was responsible for the presence of so many landmines that came from such a wide variety of places. There was not going to be a traditional, consensus-based international arms-control regime on landmines because, initially, the problem was not framed as one of supply only, but of use – of presence on (in this case in) the ground. That is essentially why the landmines issue was a different problem from that of conventional arms and was framed and treated differently from the outset, and was negotiated differently, and in a forum other than the UN.24 The case of small arms was also different from that of conventional arms, and would also have to be treated very differently too, requiring far more complex responses if it was to be successful. The epistemic community already existing regarding the conventional arms trade was therefore instrumental in achieving the important initial perception that there was a noticeable change in the post-Cold War arms trade and arms control paradigm. This was the vital first step for the small-arms issue to rise as an international concern. Research and action had to follow this change, which was perceived to have the following characteristics: • • • • •

from a handful of arms suppliers existing during the Cold War, there were many more actors that could play the role of arms suppliers; arms suppliers were not only governments, but, increasingly, arms brokers and fixers who usually operated on the fringes of the laws; the matrix of conflicts had changed from international disputes to intrastate civil and ethnic unrest; attention had to be focused on and mechanisms devised to address small arms, the weapons of choice in the new conflicts; the normative framework in place to address weapons of mass destruction was not adaptable to address the control of small arms.25

The authors on the role of ideas and norms in international relations, who represent the theoretical background used in this study, have made at least passing reference to the influence of epistemic communities in diffusing or creating new norms in the domestic or international realms (see Chapter 1). Studies on the epistemic community approach highlight that the manner in which decision makers define state interests and formulate policy on technical and complex issues is related to how the issue is framed by the advisers that policy-makers turn to for advice. Therefore, when there is no awareness or knowledge regarding a problem, epistemic communities, or networks of knowledge-based experts, may be instrumental in identifying complex problems and helping states to identify their interests and to frame the issue for public debate. Studies on epistemic communities demonstrate that the diffusion of new ideas might be a 36


powerful shaper of new patterns of behavior. The February 1994 meeting worked as a source of research innovation that became a channel through which the diffusion of innovation in policy action started emerging. In addition, it was the starting point for the development of shared judgments on how to deal collectively with the specific problems associated with the availability and proliferation of small arms. The members of the conventional arms trade epistemic community shared patterns of reasoning, policy projects drawing on shared values, causal beliefs, the use of shared discursive practices, and commitment to the application and production of knowledge in their work with the arms trade, especially during the Cold War.26 By the end of 1994, however, there was scattered and only anecdotal knowledge about small-arms proliferation. The parallel paths of, and knowledge generation and acknowledgement of the problem coincided with the publication of the UN Institute for Disarmament Research (UNIDIR) studies in 1996 (see Chapter 3) on the role of weapons in imperiling post-conflict reconstruction in many of the second-generation UN peace-keeping operations like those in Somalia, Zimbabwe, Mozambique, the former Yugoslav Republic, Cambodia, Liberia, Nicaragua and El Salvador. The descriptions of these paths of acknowledgement and knowledge generation promoted by the arms-trade community of researchers and field workers/practitioners in conflicts dealt with by the UN attempted to demonstrate that, at the end of the Cold War period, not only did the nuclear danger still persist, but also numerous others concerns and uncertainties that were brought to light regarding security thinking. New conflicts made it apparent that a departure from the narrow concept of security that had existed during the Cold War was necessary. There was a perception that the development of weapons of mass destruction still posed a real and present danger. Nonetheless, most of the casualties resulting from conflict in the last decade or so had resulted from conventional warfare and post-Cold War conflicts, almost regardless of where they occurred, have shared a number of similarities.27 Small arms and light weapons, the weapons used in intrastate conflicts and to carry out armed violence around the world, fall into a sensitive domain, even more sensitive (though not strategic) than weapons of mass destruction, due to the legitimate use of small arms and light weapons by states under Article 51 of the UN Charter.28 Under this article, states are entitled to an inherent right of individual and collective self-defense. Moreover, the existence and proper functioning of the state relies on the monopoly of the use of force by that state that logically requires the possession of arms to counter internal and external threats to its existence. As an early analyst of the small-arms question has remarked, differently from the major weapons systems that dominated arms-trade discussions during the Cold War, the weapons used by breakaway groups consisted mostly of small arms and light weapons: Such weapons have none of the exotic appeal or engineering elegance of big-budget equipment, and their cost is almost trivial by comparison. 37


They are disarmingly ordinary and familiar, and compared to the major weapons systems their potential destructiveness is easily overlooked. Most are based on technologies 40 or 100 years old.29 The post-Cold War international arms trade in small arms and light weapons has a particularly notable feature, as mentioned in the first section of this chapter: it changed the established pattern that had divided the international arms trade into a handful of suppliers and many recipients. In the trade in small arms, there are many more countries that can play the role of suppliers than in the trade in major conventional weapons. Klare notes, “countries like Uganda and Iran can play a greater role as suppliers than France or the United States.”30 In sum, there were defining moments that contributed to the rise of the smallarms issue onto the international agenda. However, the initial impetus for raising awareness regarding small arms can be traced back to two very important types of actors: scholars and practitioners. Scholars in particular played an important role in interpreting and framing small arms as a new issue and helped to make it a new topic of concern to states, as the initial impetus can be traced back to some studies that noted and helped to frame this totally new issue. These studies sprang from the conventional arms trade epistemic community and from the field researchers individually concerned with small-arms availability.31 Prior to 1993, there were very few studies addressing questions related to problems associated with small arms and light weapons. In 1988, Klare published an article that appeared in the Bulletin of the Atomic Scientists entitled “Thriving black market for weapons.”32 This already signaled a trend, outlined in the first part of this chapter, indicating the slow disintegration of the controlled supply side of the arms trade and, consequently, the gradual rise of the black market. It also pointed to how unofficial governmental arms transactions that are never opened to public debate or scrutiny can be very destabilizing. Similarly, two articles by Edward Laurance, entitled “The new gunrunning” (1989)33 and “Political implications of illegal arms exports from the United States” (1992)34 focused on and called attention to the latter phenomenon. Among the first articles to be published by the conventional arms trade epistemic community, Aaron Karp’s study on “Arming ethnic conflict” (1993) argued that the most destabilizing feature of the arms trade after the Cold War was the uncontrolled transfer of small arms and light weapons to sub-state groups,35 and that “small and light arms” were the weapons of choice in intrastate conflicts. He urged that these arms, not covered by any regional and international control instrument at that time, should receive urgent attention from the arms-trade community, while they should be added to the agenda of international arms transfers’ regimes and registers. Along the same lines, Tara Kartha, in “Spread of arms and instability” (1993), investigated the destabilization in Pakistani society, reasons for which could be found in the massive accumulation of small arms in that society,36 which was responsible for the exacerbation of violence in that region. Kartha 38


recommended that the government address the causes behind the massive increase in weapons acquisitions. Along the same lines, Christopher Smith, in “Diffusion of small arms and light weapons in Pakistan and Northern India” (1993), denounced the destabilizing effects the American arms pipeline supplying the Afghan war had in the region after the end of the Cold War, and traced the sources of supply of, and demand for, small arms in that region.37 He was in close company with Kartha when he affirmed that the presence of abundant weapons was responsible for exacerbating the violence in the region and in hampering the state-building process. Smith recommended that the root causes for the recourse to weapons should be addressed and that controls on ammunition should be put in place. In the following year, more scholarly studies appeared. Prashant Dikshit published “Proliferation of small arms and minor weapons,” in which he warned of the existence of gunrunners responsible for fuelling the trade in small arms to regions of the world afflicted by conflict.38 In addition, he drew attention to the problems associated with weapons transfers to non-state groups. He recommended the crafting of two sets of norms: one related to the (national) implementation by each country of stringent gun-possession laws, and the other related to an international ban on arms supply to non-state actors. In the fall of 1994, a study by Stephen Goose and Frank Smyth appeared, entitled “Arming genocide in Rwanda,” which dealt with the way in which ethnic tensions were exacerbated by the sheer presence of weapons, and how the unaccounted smallarms trade helped to fuel the genocide that occurred in Rwanda in that year.39 Goose and Smyth pointed out that, despite the urgent importance of this issue, it was still under-studied. They also recommended the expansion of the UN Conventional Arms Register to include small arms and light weapons. Also in 1994, Karp published “The arms revolution: the major impact of small arms,”40 in which he criticized the literature on the arms trade for failing to perceive the drastic changes in the international patterns of this trade that had taken place after the Cold War. The weapons that had assumed center stage were small arms and light weapons, which constituted a major threat to international stability. Karp recommended a series of policy measures: a clear-cut definition of small arms, the enforcement of export controls, the harmonization of arms transfers, the extension of the UN Conventional Arms Register to include small arms and the strengthening of national legislation to curb illicit arms trafficking. In his article, “Awash in armaments: implications of the trade in light weapons,” Klare uncovered four channels of small arms supply: government-togovernment, commercial sales, covert deliveries by governments and blackmarket arms deals.41 This article reinforced the point discussed in the first part of this chapter, namely that after the end of the Cold War, there was a shift in armstrade patterns, with severe implications for the proliferation of arms in regions of ethnic conflict. Klare recommended stricter national and international control on arms transfers to countries under UN embargoes. 39


In 1994, Greg Mills published “Small arms control: some early thoughts,” which offered an interesting account of how Africa was the target region for starting small-arms control, because this region lent itself very easily to arms proliferation for several reasons, such as increased use of private security and military firms, unsafe arsenal storage and weak governments, among others.42 Even though Mills acknowledged that arms were not the cause of violence, their presence may have aggravated delicate political situations. Mills recommended four measures: stricter controls on arms possession, safer weapons storage, micro-disarmament and demobilization efforts, and the creation of regional disarmament agreements. Finally, Smith published “Light weapons: the forgotten dimension of the arms trade” in 1994, in which he stressed the need for a new arms-control paradigm within which the anarchic element of small-arms control could be curtailed.43 Smith also pointed to another fruitful area in reducing arms availability – the control of ammunition. The meeting Klare called in February 1994, discussed above, worked as a source of research innovation and as a channel through which the diffusion of innovative policy action started emerging. In addition, it was the starting point for the development of shared understandings on how to deal collectively with the specific problems caused by the availability and spread of small arms. The conventional arms trade community of experts was the first to realize that there were new sets of problems to be addressed by states.44 It was instrumental in the examination of the factors underpinning the new way of researching the postCold War arms trade and underscored the revolution that had hit the arms trade in the aftermath of the Cold War. Its role was crucial in initiating global awareness regarding small-arms proliferation processes, and also in starting to raise international awareness regarding the unlawfulness of indiscriminate arms proliferation.45 The NGO activist side of small-arms norm building took a relatively long time to develop.46 Differently from the landmines norm-building processes, where the NGOs assumed great importance as leaders in the normative change processes from the start, small arms was first a scholar-led subject, then became state-led, and then NGOs followed the states, as the next part of this chapter will demonstrate. By 1995, there were 20 publications on small-arms questions, as opposed to 1993, when just a few articles had been published. Among these 20 publications, two very important studies appeared, the first two books on small arms, which gathered together writings by several researchers from the epistemic community of the arms trade. As already mentioned, first was Lethal Commerce, edited by Jeffrey Boutwell, Michael Klare and Laura Reed.47 This collection of essays surveyed the state of affairs regarding small arms up to that time. It highlighted the gaps in the knowledge of the trade in small arms, and the fact that little scholarly attention had been paid to the trade in light weapons in comparison to research on the global trade in major weapons systems and weapons of mass destruction. Light weapons had historically been assumed to follow the same trade patterns 40


as major conventional weapons. Yet this assumption had proved to be increasingly erroneous in the post-Cold War era, as small-arms trafficking had increased despite a depressed market for major weapons systems. A point of consensus among this book’s authors was the pressing need for research on the relationship between light-weapons trafficking and the proliferation of ethnic, sectarian and intrastate conflicts. In addition, there was a shared concern that governmental and multilateral disarmament initiatives must address small arms and light weapons separately from previously existing conventional arms research. The book served to illustrate the gaps that were to be filled in terms of both action and research in the small-arms and light-weapons trade, pointing to the overarching changes in the arms trade, summarized in Table 2.1. Almost a year later, the second book on the small-arms debate was published in December 1995, Light Weapons and International Security, edited by Jasjit Singh.48 This book, written by members of the conventional arms trade epistemic community, built on knowledge generated by the previously mentioned studies and served to illustrate the still-remaining gaps on small-arms research. Studies in this book, especially Klare’s piece, highlighted the fact that most of the recent thinking on controlling the arms trade had been guided by the proliferation/arms-race model.49 According to this model, arms and technology transfers are dictated by a few major suppliers and a large number of Third World recipients. With the end of the bipolar confrontation, this model had lost its utility and therefore a new paradigm that better describes the realities of the post-Cold War was needed. Therefore, Klare put forward a new model explaining diffusion/global violence proliferation. This model stated that the key postCold War arms trade characteristic was that arms were “diffused” not only to governments, but also to private armies and militias, insurgent groups, criminal organizations and non-state actors. In addition, this pattern of arms diffusion coincided with the fragmentation of societies along ethnic, religious, tribal and linguistic lines. This new post-Cold War model suggested that researchers should investigate two main areas: first, the process of diffusion itself, i.e. how Table 2.1 Reasons for the increase in the small-arms trade after the Cold War (Klare) A End of the Cold War and the break-up of communist states 1 The break-up of the former Soviet Union and the Yugoslav Federation 2 Ethnic warfare within the successor states of these regions 3 Breakdown of central authority in Russia and the former Soviet Republics 4 Diminished superpower authority over proxy forces in internal Third World conflicts 5 NATO and Warsaw Pact possessed large stockpiles of surplus weapons B Other systemic factors 6 The proliferation of ethnic, tribal and religious conflicts 7 Growing social, political and economic disorder within societies 8 The growing importance of non-state actors 9 The growing vibrancy of the global underground economy 10 The growing privatization of security and violence

41


arms entered and proliferated through societies; and second, the relationship between light weapons and the propensity for armed violence. The first area required a systematic effort to locate the principal sources of light weapons and to find out arms routes; the second required empirical studies on the impact of light-weapons diffusion on particular states and societies. These studies suggested that a new set of norms should be put forward to hold the trade in small arms more accountable and make it more transparent. Some traces of the potential norm of transparency on small-arms transfers can therefore already be perceived in a nascent form. The most important point to note is that the stage was starting to be set for the appearance of, and the giving of attention to, a new issue, as well as the outlining of its main characteristics, as summarized in Table 2.2. Table 2.2 Early policy on emerging norms and main aspects of the small-arms issue put forward by selected authors of the conventional arms-trade epistemic community Author

Norms

Main aspects/problems

Karp (1993)

Small-arms regime creation/ register

Arms transfers to non-state groups

Kartha (1993)

Addressing the causes of the recourse to weapons

Unrestricted weapons availability

Smith (1993)

Addressing the causes of the recourse to weapons; ammunition controls


Dikshit (1993)

National gun-possession laws; banning the sale of weapons to non-state actors

Brokers; arms transfers to non-state groups

Goose and Smith (1993)

Creation of small-arms register


Karp (1994)

Clear-cut definition of small arms; enforcement of export controls; harmonization of arms transfers; extension of the UN; register to include small arms; strengthen national legislation to curb illicit trafficking

Changed arms-trade patterns

Klare (1994)

Strict controls on transfers to UN-embargoed states

Changed arms-trade patterns

Mills (1994)

Stricter controls on arms Unrestricted weapons availability possession; safer weapons storage; micro-disarmament; demobilization efforts; creation of regional disarmament agreements

Smith (1994)

Ammunition controls


42


In 1995, the first UN Panel of Governmental Experts on Small Arms was set up and helped to crystallize small-arms proliferation as an international problem (see below, page 46). Four of the arms trade epistemic community scholars, newly converted to the small-arms question, testified before the UN Panel of Governmental Experts: Klare and Laurance were among them. At the time the panel was set up, there was a demand that no NGO could testify, only individual experts. This demonstrates the importance of the role of these scholars in spurring the beginning of normative change.50 From that moment onwards, the norm-building processes started to catalyze within the UN. Norm building within the UN General Assembly In 1988, Colombia introduced Resolution 43/75 I of 7 December 1988, the first resolution adopted by the General Assembly on arms transfers and illicit arms trafficking. This resolution was the first to request the Secretary-General to carry out, with the assistance of governmental experts, a study on ways and means of promoting transparency in international transfers of conventional arms on a universal basis, taking into consideration the views of member states, including those on the problem of illicit arms trade. This was the first comprehensive assessment of the linkage between the promotion of transparency and the illicit arms trade. This study would give rise and serve as stepping stone to the UN Conventional Arms Register (see Chapter 4). In Resolution 43/75 I, the General Assembly expressed its conviction that arms transfers in “all their aspects” deserve serious consideration by the international community, in terms of: a) their potential effects in areas where tension and regional conflict threaten international peace and security and national security; b) their known and potential negative effects on the process of the peaceful social and economic development of all peoples; and c) increasing illicit and covert arms trafficking. Subsequently, pursuant to that resolution, the Secretary-General submitted a study (A/46/301) on ways and means of promoting transparency in international transfers of conventional arms. A number of the recommendations made in the study were taken up subsequently in General Assembly Resolutions 46/36 H and 46/36 L, of 6 and 9 December 1991 respectively. Colombia also introduced Resolution 46/36 H, adopted by the General Assembly on 6 December 1991, as a result of which the UN Disarmament Commission issued guidelines for the implementation of concrete measures aimed at preventing arms from reaching those who intended to use them to destabilize governments; foment violence and terrorism; and promote trafficking in narcotic drugs, ordinary and organized crime, mercenary activities and other criminal activities. Many countries started to recognize that priority must be given to tackling the arms trade and eradicating illicit arms trafficking. In Resolution 46/36 L, entitled Transparency in Armaments, the General Assembly requested the Secretary-General to establish the Register of Conventional Arms (see Chapter 6). It called upon all member states to provide data on imports and 43


exports of arms and invited them also to provide available background information on military holdings, procurement through national production and relevant policies. This demonstrates how states were shifting their attention from weapons of mass destruction to conventional weapons, in the aftermath of the end of the Cold War. Resolution 46/36 H was essential for the drafting, five years later, of the Guidelines for International Arms Transfers (UN Guidelines) in 1996.51 The Secretary-General reiterated the need for the implementation of the guidelines through practical measures. The nature and scope of the illicit arms trade was discussed in detail in an earlier report of the Secretary-General on ways and means of promoting transparency in international transfer of conventional arms (A/46/301). The report of the Secretary-General on assistance to states for curbing the illicit traffic in small arms and collecting them (A/52/264) referred to the actual experiences of West African states in this field of growing international concern (see Chapter 3). The UN Guidelines called attention to the fact that international transfers of conventional arms had acquired a dimension and qualitative characteristics that, together with the increase in illicit arms trafficking, gave rise to serious and urgent concerns.52 The UN Guidelines gave prominent attention to small arms, when, in advising states on “ways and means” to achieve more sustainable global patterns of arms transfers, it stated that the use of small arms and light weapons in conflicts and war had a major bearing on regional and international peace and security, and national stability. The alarming dissemination and illicit transfer of such weapons and the serious threat they posed required states to ensure strong and effective supervision of all aspects of trade in such weapons. The UN Guidelines recalled Resolution 50/70 H, when the General Assembly invited the international community to give appropriate support to the efforts made by the affected countries to suppress the illicit circulation of small arms, and made the link between this issue and its likely ability to hamper their development. The first UN mission with a broad high-level profile to study illicit arms circulation and weapons destruction was sent to Mali in 1994 (see Chapter 3). Two resolutions paved the way for the developments in Mali that would take place subsequently: Resolution 48/75 H of December 1993 requested the SecretaryGeneral to seek the views of governments on effective ways and means of collecting weapons illegally circulating in countries, in the event that such countries so request, and to submit a report to the General Assembly at its forty-ninth session (see Chapter 3). A year later, on 15 December 1994, the General Assembly adopted Resolution 49/75 M, entitled Measures to Curb the Illicit Transfer and Use of Conventional Arms, paragraph 3 of which requested the SecretaryGeneral: a) to seek the views of member states on effective ways and means of collecting weapons transferred illicitly, in particular in the light of experience gained by the UN; and b) to seek the views of member states on concrete proposals concerning measures at the national, regional and international levels to curb the illicit transfer and use of conventional arms. Colombia affirmed it had 44


long believed that the UN should play a central role in curbing the proliferation of conventional arms and controlling their transfer.53 The General Assembly, at its forty-ninth session, adopted two resolutions on illicit arms trafficking. In Resolution 49/75 G of 15 December 1994, introduced by Mali on behalf of a group of African states, the General Assembly expressed grave concern at the extent of the insecurity and banditry linked to the illicit circulation of small arms in the African sub-region and invited member states to implement all necessary measures to check the illicit circulation of such arms and, above all, to curb their illegal import. In Resolution 49/75 M of the same date, introduced by Afghanistan and jointly sponsored by other countries, including Colombia, the General Assembly stressed the need for effective national control measures in order to prevent illicit transfers, as an important contribution to the relaxation of tension and peaceful reconciliation processes. Countries particularly suffering the negative consequences associated with the illicit trafficking, like Colombia and Afghanistan, were at the forefront in proposing these resolutions. The beginning of 1995 was, in effect, the period when norm-building processes within the UN accelerated with the publication of the Supplement to an Agenda for Peace, which was an instrumental document in giving impetus to the small-arms norm-building process.54 It was the first international document to call for urgent measures to tackle “light weapons . . . that are actually killing people in the hundreds of thousands”:55 I wish to concentrate on what might be called “micro-disarmament”. By this I mean practical disarmament in the context of the conflicts the United Nations is actually dealing with and of the weapons, most of them light weapons, that are actually killing people in the hundreds of thousands.56 The Supplement of an Agenda for Peace triggered a flurry of activities at the international and regional levels as the Secretary-General insisted that progress since 1992 in the area of weapons of mass destruction and major weapons systems should be followed by parallel progress in conventional arms, particularly with respect to light weapons: “I believe strongly that the search should begin now, and I intend to play my full part in this effort.”57 The years from 1995 up to the end of 1999 were essential for the international norm-building process on small arms. By its Resolution 50/70 B of 12 December 1995, entitled Small Arms and introduced by Japan, the General Assembly requested the Secretary-General to prepare a report, with the assistance of a panel of governmental experts, on the question of small arms and light weapons in all its aspects. In addition, in Resolution 50/70 H, entitled Assistance to States for Curbing the Illicit Traffic in Small Arms and Collecting Them, the General Assembly invited the international community to give appropriate support to the efforts made by the affected countries to suppress the illicit circulation of small arms, which was likely to hamper their development. With these 45


resolutions, the process begun in 1988 had gathered momentum by focusing on light weapons as an important aspect of the problems inherent in arms transfers and illicit arms trafficking. The creation of the UN Panel of Governmental Experts on Small Arms in 1995, and the publication of its first report in 1997 (hereafter the 1997 Panel Report), followed by the decision to convene an international conference on illicit trafficking, catalyzed the state-led side of norm development.58 The 1997 Panel Report worked as a cornerstone in profiling the array of problems associated with small-arms availability. It became the impetus for triggering the “acknowledgement of the problem” of small arms by the UN.

Furthering norm building on small arms, 1995–2001 As it has been demonstrated, the conventional arms trade epistemic community was central in promoting the need for research into small-arms trade patterns before 1994. Until 1997, there was no international non-governmental action framework to tackle the problems associated with small arms. Progress in this area was mostly triggered by UN resolutions, as seen above, and by what will be analyzed in this part, namely, a coalition of like-minded states. This is the reason why Edward Laurance, a prominent analyst of the small-arms question, has no problem in concluding that this is predominantly a state-led process, working through the UN.59 Table 2.3 tracks the main actors responsible for the promotion of the first initiatives on small arms described in this chapter. The wealth of initiatives promoted by governments during the period 1995–9 within the UN and through the coalition of like-minded states (described below, pages 46–9) were an indicator that states had a stronger sponsorship role in the advancement of the issue of small arms within the international agenda than non-governmental actors in that period. They acted as agenda setters and elevated the small-arms issue to a position of prominence within the international agenda. The role of some states, like Canada and Norway, was key in the making of a coalition of like-minded states that played a central role in advancing global efforts on small arms. Differently from the landmines case, where NGOs assumed a prominent role in promoting international efforts to advance the issue within the international agenda, and were the main actors advocating normative change, the small-arms question presents a more complex relationship among state and non-state actors. The formation of a coalition of like-minded states There were three important meetings that took place in 1998 for the consolidation of the coalition of like-minded states:60 in Oslo in July, in Canada in August, and in Belgium in October. These meetings were also instrumental in the sense that they helped to raise awareness and mobilize action within the 46


Table 2.3 Main events leading up to the rise of the issue of small arms, and the main actors involved Date

Event

Actor who supported the event

September 1993 Start of some research and policy studies

Scholars and arms-control practitioners

Spring 1994

Genocide in Rwanda, followed by publications denouncing the role of brokers involved in arming the genocide

NGOs

Fall 1994

UN mission to Mali

UN Secretary-General/Governments

January 1995

Publication of the Supplement UN Secretary-General to an Agenda for Peace; creation of the term “micro-disarmament”

December 1995 Establishment of the Panel of Governmental Experts on Small Arms


August 1997


Report of the Panel of Governmental Experts on Small Arms

November 1997 Inter-American Convention US, Mexico and Brazil against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (OAS Convention) December 1997 Ottawa Treaty on Landmines

NGOs

January 1998

Establishment of www.prepcom. Edward Laurance, Monterey org to prepare for the launch of Institute of International Studies, the International Action Network USA on Small Arms (IANSA)

July 1998

Canada meeting involving 38 NGOs; Oslo meeting

Canadian government; Canadian–Norwegian governments

August 1998

NGO consultation on IANSA

Canadian government

October 1998

Belgian meeting; launch of IANSA

NGOs/Governments

December 1998 Decision to hold UN Conference Governments in 2001 February 1999

Statement of the Security Council; Start of negotiations for Firearms Protocol

Governments

August 1999

Report of the Group of Governmental Experts on Small Arms


47


small-arms debate. The meetings showed that the year 1998 was also the most important for the consolidation of the debate and norm building in the international agenda.61 The first Oslo meeting (Oslo I) in July 1998 issued An International Agenda on Small Arms and Light Weapons: Elements of a Common Understanding, Concerns and Challenges.62 This outlined that the states present at the meeting – the first to gather states together in order specifically to discuss the spread of small arms – recognized the problems caused by the excessive availability and accumulation of small arms and light weapons and their multiple links with humanitarian, developmental and security concerns. In many societies, excessive accumulation and criminal use of the weapons contributed to violations of international humanitarian law, including war crimes and abuse of human rights. The states present at the meeting went on to recognize that small arms threatened security, exacerbated violence, increased human suffering, hindered socio-economic development and political stability, constituted an obstacle to the implementation of peace agreements and the development of a culture of peace, and were an impediment to meaningful development cooperation. What is more, the states declared that a sizable portion of all transfers of small arms and light weapons was illicit and increasingly linked to other transnational criminal activities, and there was a considerable “grey trade.” Due to its complexity, the problem had to be pursued and solutions sought in different forums and in a variety ways: Governments bear the primary responsibility for addressing these issues. It is therefore encouraging to note the increasing number of government initiatives. Governments recognize that civil society in general and NGOs in particular contribute to our work. They acknowledge the important role of NGOs in conducting and disseminating research, doing field studies, educating the public, providing advice to governments on small arms issues and in delivering humanitarian relief to war-torn societies.63 This meeting addressed several areas and advanced some potential norms that could be developed. Among the most relevant are those listed below, which are analyzed in detail in the second part of this study. States were encouraged to: • • • •

ensure strict enforcement of appropriate laws and regulations on civilian possession of small arms; improve traceability of small-arms possession and transfers, e.g. through improved marking; respect and ensure respect for international humanitarian law with regard to the use of small arms and light weapons; develop national and regional mechanisms including codes of conduct in connection with the legal manufacturing, transit, transfer and, where appropriate, reduction of small arms and light weapons; 48


• • • •

ensure the collection, safe storage and/or destruction of “surplus” military weapons and weapons not legally held; ensure voluntary programs for weapons collection; ensure the integration of these issues into peace accords; and seek to reverse cultures of violence.

The second meeting of 1998, the International NGO Consultation on Small Arms Action, was held in Canada on 17–19 August. The core of the report was the draft proposal for the creation of an international NGO action network on small arms. On the final day, the former Canadian minister of foreign affairs, Lloyd Axworthy, addressed the gathering. The presence of government representatives underscored the initial contours of the cooperation and collaboration between NGOs and governments. Participants reaffirmed that NGOs had a central role to play in addressing the problem of small arms. That key role was also acknowledged by governmental participants. Axworthy noted that civil society activism was the major factor in ensuring that governments actually took up the responsibilities that they had acknowledged were theirs. The consultation also heard a report of the July 1998 meeting in Oslo of government officials from 21 countries that emphasized the importance of engaging NGOs in conducting and disseminating research, doing field studies, educating the public, providing advice to governments on small-arms issues and in delivering humanitarian relief to war-torn societies. On the basis of extensive discussion and reflection, the meeting agreed to establish the International Action Network on Small Arms (IANSA) in order to enhance international efforts to curb the proliferation and abusive use of small arms. It also went on to identify a basic policy framework and program of action to guide the collective work of NGOs in the network, and to establish some initial operating principles and structure, as well as a process to bring IANSA formally into being. The third important meeting of 1998 took place on 12–13 October, was hosted by the Government of Belgium and was called the International Conference on Sustainable Disarmament for Sustainable Development. Representatives of 95 governments and over 100 international and non-governmental organizations participated in the conference. The final document of the conference, The Brussels Call for Action, called for an international program of action on practical disarmament and peace-building.64 This was the first meeting aimed at setting the concepts for the creation of IANSA. The formation of a transnational action and policy network Prior to the 1998 meetings, on 10 December 1997, the day that the ICBL received the Nobel Peace Prize, in Washington, DC, there was a meeting to design what would become IANSA. Present was a small group of researchers and some activists from several affiliations: development, human rights/humanitarian law, 49


arms control/disarmament, and domestic and international gun control movements.65 The purposes of this meeting were to:66 1 2 3

explore whether groups want to work together to combat the global diffusion of guns and light military weapons throughout societies; conceptualize an inclusive and compelling framework for focused work to reduce the damage caused by these weapons; and discuss the establishment of a mechanism to coordinate and advance these groups’ collective efforts.

The participants in the meeting acknowledged from the inception that many different constituencies had a stake in the research and action on small arms: human rights, refugee/relief work, development, disarmament, domestic gun control, peace-keeping troops, and regional campaign groups usually related to violence reduction. Many of these constituencies had already identified a selfinterested stake in global aspects of the issue, but there were difficulties in conceptualizing an overarching framework for activities to combat the worldwide proliferation of small arms. For instance, while domestic gun-control groups focus generally on the public health implications of gun availability, in developed countries, this issue is connected to suicides, whereas in some developing countries, the issue is about homicides. At the time this meeting took place, there was an ongoing initiative promoted by the UN Economic and Social Council (UNECOSOC) focusing on police and crime control (see Chapter 7). The predominant question was, therefore, how to combine the various constituencies into an overarching effort that encompassed everyone’s concerns. In addition, participants at the Washington meeting were aware that many organizations from the developing countries, who would have yet other stakes, were not represented in the meeting. The general opinion was that a single treaty would not suffice to cover all aspects of small arms, and efforts and policy initiatives were necessary on many fronts: international, regional and local. There was also an extensive general discussion on potential overarching themes and subordinate goals of a possible small-arms campaign, as shown in Table 2.4.67 This meeting reached a consensus that a global campaign was necessary. Edward Laurance offered to create a web-oriented campaign through the Monterey Institute of International Studies (MIIS) in California, USA. The creation of the virtual Preparatory Committee (PrepCom) to IANSA was fundamental to gathering more researchers and activists around the issue. PrepCom served, in addition, as a useful electronic clearing-house for disseminating information. PrepCom opened in January 1998 with 12 NGOs, among which were Human Rights Watch, the Bonn International Conversion Center (BICC), Saferworld, International Alert and the British American Security Information Council (BASIC). PrepCom came about mostly due to the efforts of Laurance, who began to promote the idea that what had been done with landmines could be 50


Table 2.4 Initial possible goals of a transnational action network on small arms 1 Collection/destruction of surplus stocks of weapons, especially those left over from conflicts. Aim: to break the pattern of weapons being recycled from conflict to conflict. 2 Curbing illicit arms trafficking, coupled with urging responsible government policies on licit sales of small arms. Aim: to cooperate with ongoing initiatives such as the OAS Convention. 3 Curbing the spread of advanced/high-end small arms. Aim: to stop the widespread diffusion of new types of weapons. 4 A global ban on production and transfer of non-sporting weapons/ammunition. Aim: to extend efforts being undertaken in Australia and the UK (at the time). 5 Ammunition controls. 6 A comprehensive treaty to reduce harms from small/light weapons. Such an approach would give focus to NGO work in various nations: they would work to press their governments to sign up to a treaty relating to responsible gun use and to bar exports to non-signatory governments. Aim: this effort would build on the government–NGO collaboration that emerged in the international campaign to ban anti-personnel landmines.

undertaken with small arms and light weapons.68 Laurance worked in closed collaboration with the Canadian government, who were very encouraging of these efforts and had Laurance coming to brief government officials. Lloyd Axworthy was a particularly important individual at this stage.69 When the landmine treaty was signed and the last day was crowned by celebrations, Laurance was invited by Axworthy to give the last presentation, in which Laurance said that at that point there something needed to be done about small arms. After his presentation, Laurance had a half-hour discussion with Axworthy and the deal for the creation of the transnational action network on small arms was struck on 10 December 1997. Axworthy told Laurance in this private meeting that the former needed a movement on small arms and Laurance was supposed to get the critical mass necessary to achieve that. Following this, they met the press and Axworthy confirmed publicly that he would support a global movement on small arms.70 Over four years after the 1994 first meeting of the conventional arms trade epistemic community, momentum had built to the stage of forming a transnational action network focusing only on small arms. Whether this network was influential in international norm building will be examined in depth in this study. Legal and political framework on small arms This section of the chapter will outline the major regional and international documents that constitute what is called here the “legal and political framework on small arms,” which addresses small-arms proliferation until the end of 2001, detailing developments in specific regions throughout the world, as well as the 51


international framework.71 The main analysis stops in 2001, because UN 2001 was such a watershed in the development of international norms regarding small arms. However, a discussion of developments from 2001 to the present will also be included, to bring the discussion up-to-date, examining how norm building evolved after 2001. This analysis also aims to foreshadow the second part of this book, namely the analysis of specific emerging norms, which contains in-depth analysis of norm building through an examination of key documents, to complement the overall examination of norm building combining state practice, the main actors espousing norm building and norm-building mechanisms. The foundational international documents to initiate the building of the legal and political framework on small arms were the 1997 report of the Panel of Governmental Experts on Small Arms (the 1997 Panel Report) and the 1999 report of the Group of Governmental Experts on Small Arms (the 1999 Group Report).72 As we have seen, General Assembly Resolution 50/70 B of 12 December 1995 established a panel of governmental experts on small arms that was established in April 1996. Its task was to assist the Secretary-General in the preparation of a report on: a) the types of small arms and light weapons actually being used in conflicts being dealt with by the UN; b) the nature and causes of the excessive and destabilizing accumulation and transfer of small arms and light weapons, including their illicit production and trade; and c) the ways and means to prevent and reduce the excessive accumulation and transfer of small arms and light weapons, in particular as they cause and exacerbate conflict. The panel published its first report, transmitted to the General Assembly, in 1997.73 The Panel of Governmental Experts on Small Arms found that virtually every part of the UN system was dealing with the direct and indirect consequences of recent armed conflicts fought mostly with small arms and light weapons.74 The 1997 Panel Report played a pivotal role in profiling the nature and causes of the array of problems associated with international small-arms proliferation. The report of the Panel acted as a catalyst to place the issue of small arms and light weapons firmly on the international agenda, and the United Nations has continued to encourage and support all efforts to address the wide-ranging problems posed by such weapons. The Group of Governmental Experts on Small Arms has prepared, and adopted by consensus, a substantial and well-considered report that helps to carry forward the work of the United Nations in preventing and reducing the excessive and destabilizing accumulation of small arms and light weapons.75 In addition, the 1997 Panel Report was instrumental in defining which weapons fell under the category “small arms and light weapons,” a subject of ample controversy. As a result, the General Assembly requested the Secretary-General to implement the relevant recommendations contained in the report, and in particular, the recommendation concerning the convening of an international confer52


ence on the illicit arms trade in all its aspects, in time for consideration by the General Assembly at its fifty-third session.76 The 1999 Group Report started acting as a norm setter, as it proposed concrete sets of norms regarding many aspects of the problem, advancing policy proposals on key aspects prior to UN 2001.77 In parallel to the establishment of the Panel of Government Experts, the first legally binding regional instrument on small arms was being negotiated in the American hemisphere. On 14 November 1997, the Organization of American States (OAS) adopted the Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (hereafter the OAS Convention).78 This was the first multilateral treaty designed to prevent, combat and eradicate illegal transnational trafficking in firearms, ammunition and explosives.79 It was aimed at helping to make the citizens of the hemisphere safer by helping to shut down the illicit transnational arms market that fuels the violence associated with drug trafficking, terrorism and international organized crime.80 It was also aimed at strengthening states’ ability to eradicate illicit arms trafficking, and was modeled on American laws, regulations and practices.81 The key provisions of the convention inspired the negotiation of the Firearms Protocol of 2001, as will be seen later in this section. These are the marking of firearms; export, import and transit licenses; the criminalization of illicit manufacture and sale; information exchange; international coordination; law-enforcement cooperation; technical assistance; and training. In May 1998, after years of lobbying by European non-governmental groups, the EU became the first group of states to accept a regional code of conduct.82 The EU Code of Conduct is a politically binding instrument that seeks to create “high common standards” for all EU members to use when making arms-export decisions and to increase transparency among EU states on arms exports. With the enactment of the code, EU states agree not to approve arms exports if: • • • •

the sale will violate the exporting state’s commitments under the UN Charter or specific arms-control agreements; there is a “clear risk” that the weapons will be used for internal repression; the arms could provoke or prolong armed conflict; and there is a “clear risk” that the arms would be used aggressively against another country.

Under the code, EU members also agree to take into account when making their export decisions: • • •

the risk of use of weapons against allies; the risk of unintended diversion of technology; the importing state’s record on terrorism; 53


• • •

the implementation of humanitarian law (non-use of force against civilians) and arms-control agreements; the effectiveness of the importing state’s export control laws and mechanisms; and the economic situation in the importing state, including relative levels of military and social spending.

The code also has a singular operative mechanism designed to enhance transparency among EU members while discouraging states from using such information to undercut sales denials by other EU states. EU members are to report to each other “through diplomatic channels” when an export license has been denied based on the code’s criteria. If another state intends to grant a license for an “essentially identical transaction” within the next three years, it must first consult with the state that first made the denial. Member states are also required to provide to each other “in confidence” an annual report on their arms exports and implementation of the EU Code of Conduct (see Chapter 6).83 In the same year, the European Union Joint Action on Small Arms (hereafter EU Joint Action) of 17 December 1998 was adopted by member states, with the intent of addressing the destabilizing accumulation and spread of small arms and light weapons.84 The EU Joint Action is implemented through national laws and refers to the control and registration of exports, transparency and evaluation of potential importers. Article 3 defines states to be the only legitimate end users by including a commitment by exporting countries to supply small arms only to governments. The sale of military-style small arms to sub-state or non-state groups is not permitted and the EU member states have renounced this form of military assistance as an instrument in their foreign and security policy (see Chapter 7). The EU Joint Action therefore allows the member states to grant financial and technical assistance to projects conducted by the UN, the ICRC (and other international organizations), NGOs and other states. A problem inherent in the EU Joint Action is that it defines small arms only to include those that are “specially designed for military use,” which means that it falls short of addressing pistols, revolvers and rifles and therefore fails to cover some of the weapons frequently used in armed violence in general, and in intrastate conflicts. Despite this shortcoming, it remains one of the few legally binding documents on small arms and will therefore be thoroughly analyzed in this study. The EU Joint Action was amended in 2002 to include ammunition.85 Still in the European context, the OSCE adopted a far-reaching agreement to combat the spread of small arms and light weapons.86 Its importance partly lies in the fact that the participating states of the OSCE comprise several states beyond the EU, such as most states in the Caucasus, South-Eastern Europe and also the United States. The OSCE Document on Small Arms and Light Weapons (hereafter OSCE Document) sets specific norms and measures for monitoring the spread of weapons in the OSCE region. The OSCE participating states agree to combat illicit trafficking in small arms and light weapons by prosecuting their 54


illegal manufacture, marking small arms and destroying or marking any unmarked weapons. They also agree to exchange information on exports and imports of small arms and light weapons within the OSCE region. The fundamental importance of this document for the international norm-building process on small arms is that it prescribes participating states to agree on the establishment of a list of small-arms contact points in delegations to the OSCE and in capitals, in addition to annual review meetings on the implementation of the norms, principles and measures. The document has also an “evolving nature,” as its scope and content remain under regular review, according to the work of the UN and of other international organizations and institutions.87 Another common regional position is the 2000 Brasilia Declaration of the Regional Preparatory Meeting of the Latin American and Caribbean States for the 2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (Brasilia Declaration), which represents the common position of the Latin American and Caribbean states with regard to UN 2001.88 The Government of Brazil organized a Regional Preparatory Meeting of the Latin American and Caribbean States for UN 2001 at which representatives of the Latin American and Caribbean States met to seek a common approach to the issue of illicit trade in small arms and light weapons, with a view to contributing a regional perspective to UN 2001 and its preparatory process. They expressed the belief that the conference should adopt a political declaration and a global program of action. In the regional African context, there are three key politically and legally binding documents to be examined: the 2000 Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and in the Horn of Africa (Nairobi Declaration),89 the 2000 Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons (Bamako Declaration)90 and the Southern African Development Community (SADC) Protocol on the Control of Firearms, Ammunition and other Related Materials in the Southern African Development Community Region (SADC Protocol) in August 2001.91 The latter is one of the few existing legally binding documents on small arms, which entered into force in November 2004. The Nairobi Declaration was enacted by the ministers of foreign affairs of the countries of the Great Lakes region and the Horn of Africa.92 Its chief purpose is the encouragement of a coordinated agenda for action for the subregion to promote human security, aiming for a situation where all states have adequate laws and administrative procedures to control the possession and transfer of small arms through a series of concrete measures. Two very interesting developments in the process of norm building followed the enactment of the Nairobi Declaration to the analysis of norm building. One was the creation of the Nairobi Secretariat on Small Arms to coordinate the action by each member country’s National Focal Point on small arms in the Great Lakes region and Horn of Africa.93 The secretariat’s vigorous work encompasses crime, conflict 55


and instability and interacts broadly with civil society: NGOs, religious organizations, academics, journalists and private-sector organizations. The other development was that the politically binding framework devised by the Nairobi Declaration evolved into a parallel legally binding instrument, the Nairobi Protocol on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Area and the Horn of Africa, adopted in April 2004.94 As a result, the secretariat was elevated to a Regional Center on Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa (RECSA), an international organization aiming to effectively implement the Nairobi Declaration and the Nairobi Protocol, which is expected to enter into force by 2006. The second document examined here in the African context is the 2000 Bamako Declaration. The first OAU Ministerial Conference on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons in Africa was held between 30 November and 1 December 2000 in Bamako. The conference adopted the Bamako Declaration, which expresses the common African position on the illicit proliferation and circulation of and trafficking in small arms and light weapons for UN 2001, and herein lies its importance for the norm-building processes being discussed. The last document to be examined from the African regional context is the August 2001 SADC Protocol. The chief goal of the SADC Protocol is to prevent, combat and eradicate the illicit manufacturing of firearms, ammunition and other related materials, as well as their excessive and destabilizing use, trafficking and possession. It also seeks to regulate the import and export of legal small arms and thus curb the transit of these weapons into, and within, the region. In addition, the protocol aims for the harmonization of national legislation across member states on the manufacture and ownership of small arms and light weapons. Thus the SADC Protocol marks a further significant development in the efforts of the states of Southern Africa to tackle the scourge of small arms and light weapons.95 The main challenges these countries96 in the SADC region face are obsolete national legislation, precarious peace processes, porous borders, the lack of capacity on the part of both governments and civil society to effectively monitor the legal and illegal movement of firearms, and the lack of data from which to assess the improvements that may result from the effective implementation of the SADC Protocol. The regions where the political and legal framework on small arms is least developed are the Middle East and Asia, with the exception of the active progressive participation of Japan in furthering international norms on small arms (see Chapter 7). The first meeting in Asia addressing small arms occurred only in 2000. In addition, so far, this region has chosen to frame the small-arms debate in terms of organized crime and terrorism only.97 The other regions frame, at least rhetorically, the issue so as to encompass a wider array of problems, including post-conflict resolution and reduction of violence. The first conference on small arms focusing specifically on South Asia was held in 56


Kandalama, Sri Lanka, in June 2000 and was organized by the Colombo-based Regional Center for Strategic Studies in collaboration with UNIDIR and the Government of Canada, which also provided funding. This was preceded by a regional seminar held in Jakarta, Indonesia, on 3–4 May 2000, organized by UNIDIR and the UN Regional Center for Peace and Disarmament in Asia and the Pacific. It was generally agreed that, while the problem of illicit trafficking in small arms varied within South-East Asia, it represented principally a challenge of transnational crime rather than one of conflict or post-conflict violence. In other words, in assessing the magnitude and scope of the illicit trafficking in small arms and light weapons, representatives urged that the analysis be framed in the context of transnational crime. Representatives also felt that, while their countries were neither the main sources of illicitly trafficked small arms nor the worst affected by them, they could not remain indifferent to problems posed by illicit trafficking.98 However, they agreed that action to combat transnational crime provided the most amenable framework for developing cooperation to combat and prevent the proliferation of small arms in the region, in particular with regard to sharing of information and coordination of activities and, perhaps, the establishment of a regional database.99 The last two documents of the legal and political framework on small arms are of international scope: one is legally binding and the other politically binding. The legally binding one is 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 (hereafter Firearms Protocol).100 The politically binding one is the Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects (hereafter Program of Action).101 The Firearms Protocol came into force on 3 July 2005. Article 11 of the Firearms Protocol outlines far-reaching procedures for the import, export and transit of firearms, their parts and components, and ammunition. It is a reciprocal system requiring countries to provide authorizations to one another before permitting shipments of firearms to leave, arrive or transit across their territory and enables law enforcement to track the legal movement of shipments to prevent theft and diversion. Article 9 of the Firearms Protocol requires firearms to be marked at the time of manufacture and at import. The importance of firearm-marking to the law enforcement community is reflected in this provision, which contains information requirements to enhance the effectiveness of criminal investigations and prosecutions. Although there is general consensus on the need to mark firearms at the time of manufacture, the issue has been raised that firearms manufactured by a state party for its military may be marked differently. This issue will have to be reconciled with the need to provide lawenforcement officials with sufficient information to trace these firearms during the course of a criminal investigation, should they enter the illicit market.102 A provision for the control of arms brokers was also introduced into the Firearms Protocol discussions, calling for a system of registration and licensing of 57


brokers, along with the criminalization of those who conduct brokering activities without the appropriate authorization. However, this was not included in the final protocol (see Chapter 4). Given the regional differences that characterized the negotiations of the Firearms Protocol and the low common denominator that marked the results of the long years of negotiations, it became important to look at regional frameworks for small arms, such as the OAS Convention, and within the EU, and Southern Africa, as is done in this study. The Program of Action, cornerstone of the international action on small arms, provides states with the first opportunity to adopt measures to combat the proliferation of small arms in a truly international and all-encompassing fashion. It is the result of a decade of hard advocacy and intense generation of knowledge by the many actors involved in the small-arms debate and in the fight for the reduction of violence worldwide. Adopted by consensus on 20 July 2001, it represents a significant first step toward the goal of controlling the illicit trade in small arms and light weapons. It includes comprehensive national, regional and global strategies and provides for a sound process of follow-up to UN 2001 (the BMS in 2003, 2005, and a Review Conference in 2006). Some countries with undue influence in the international arena acted as stumbling blocks, whereas others with sizable influence had both a role of obstructing norm development, like the United States (see Chapters 7 and 8), or contributing to it, like the EU countries (see Chapter 6). The EU in particular displayed activism and advocacy for more progressive provisions seeking to imprint a humanitarian dimension on the document, as will be demonstrated in the second part of this study. The Program of Action might have achieved only the lowest common denominator of agreement; however, as Keith Krause advances, it is an important indicator of important broader questions (which are the ones that guide my study), namely: •

•

• •

how should scholars understand the documentary record left by UN conferences, and how much can it tell us about multilateral diplomacy in an issue area? does participation in conference diplomacy shape state interests or are such processes better understood as bargaining games between actors with exogenous or fixed interests? what is the role of non-governmental actors in such multilateral processes? to what extent does the UN serve as a site for global norm building?103

The next part of this study will use this legal and political framework on small arms outlined above in each of the case studies, in a detailed chronological analysis of the key documents referred to. They form part of the framework to complement the examination of state practice and the work of multiple actors in the complex multi-layered process of regional and international norm building on small arms.

58


Developments, 2001–6 The documents detailed in the preceding section represent the evolving opinio juris of states with regard to small arms. They also reflect the political activity and multilateral negotiations until the first international conference on small arms, i.e. UN 2001. This part of the chapter will examine what happened from UN 2001 until the present that affected international and regional norm building. Each case study in the following sections will focus primarily on how the potential norms emerged on the international agenda, principally until 2001; and then examine how norm building deepened afterwards. Since that time, there has been a tendency for norm building to consolidate at the regional, rather than the international, level, e.g. in the case of the Nairobi Protocol. Also worthy of note is an acceleration in activities within the American hemisphere. Within the framework of the OAS Convention, Latin America and the Caribbean have displayed a vigorous leadership on the implementation of the convention and the Program of Action. A recent UN resolution praised the work of the UN Regional Centre for Peace, Disarmament and Development in Latin America and the Caribbean, with headquarters in Lima, emphasizing the importance of having the center as an instrument for the implementation and facilitation of regional initiatives by identifying regional security needs and supplying information on weapons-related matters, weapons destruction and stockpile management, including the initiation of a series of training courses for the lawenforcement community, members of parliament, representatives of ministries of foreign affairs and NGOs.104 Destruction of weapons in the region is a consolidated norm (in Guatemala, Nicaragua, Costa Rica, Paraguay, Peru, Brazil and Argentina, among other states).105 Within the UN, since UN 2001, there have been two Biennial Meetings of States (BMSs) to assess developments on small arms internationally, in 2003 and 2005. Also, in its Resolution 56/24 V of 24 December 2001, the UN General Assembly decided to convene a conference in July 2006 to review progress made in the implementation of the Program of Action. Multilateral attention will be focused on the review of international and regional efforts and initiatives on small arms and light weapons. The first BMS was held in New York in July 2003, which reported that, by that date, countries reflected a greater state of preparedness to prevent future illicit arms transfers and misuse. An enhanced recognition of the human security aspect of the small-arms debate was also noted, as well as improved public awareness of the small-arms issue and greater resource mobilization through seminars and workshops. As mentioned above, the major problem regarding international illicit arms trafficking are weapons already in circulation. Efforts to manage these weapons resulted in disparate outcomes for several reasons: the restricted implementation of the Program of Action since 2001; the absence of transparency on legal arms transfers; the absence of information for affected countries regarding illegal acquisitions from national armories and other sources; 59


civilian possession in violation of national regulations; wrongful use of legally or illegally possessed weapons in contravention of national and international humanitarian law and norms and customary practices; and illicit transfers in breach of internationally and regionally imposed embargoes and agreements.106 At the second BMS in July 2005, even though it was generally recognized that there was a heightened consensus on many of the fundamental issues relating to the problems of illicit small arms and light weapons, some issues, such as transfers to non-state actors and the matter of civilian possession of firearms, remained highly polemical. More than 115 developing countries received assistance under the project Capacity Development for Reporting to the United Nations Program of Action on Small Arms, jointly sponsored by UNDDA, the UN Development Program (UNDP) and UNIDIR, in collaboration with the Small Arms Survey.107 A momentous step toward full implementation of the Program of Action was the adoption of a politically binding international instrument on marking and tracing (see Chapter 5). Also, the broad-based consultations on illicit brokering held by the UN Secretariat have stressed the complex nature of the problems that have to be confronted in the process of consolidating this emerging norm (Chapter 4). As in the landmines debate, where there is an annual report on the implementation and compliance to the Ottawa Treaty and to inform and assess the responses to the problems caused by them (the Landmines Monitor), in the small-arms debate, there are the Red Books published by some of the leading advocacy NGOs. These usually set a very high bar on expectations for action and norm building on small arms. They report by 2005 that: 143 states have established an official point of contact to act as liaison between states. Many of these are not yet operative, and some states are slow to provide the information needed to keep the UNDDA’s list of national points of contact up-to-date. 120 states have submitted at least one report on national implementation to the UNDDA. However, only two states have submitted reports in all four years (67 states have submitted one report, 37 have submitted two; 14 have submitted three). 79 states have designated national coordination mechanisms: a substantial increase over the total of 37 set up by 2003. Further, 29 of these actively involve civil society in their national coordination of action on small arms. 18 states have developed specific national strategies on small arms including national action plans; though some of these are quite limited in scope. A further 14 states are in the process of discussing or developing such national strategies.108 60


According to the group of NGOs that publish the Red Book (i.e. Biting the Bullet), only some countries and regions have systematically engaged in implementation of the Program of Action, but “delay costs lives,” they warn.109 Following UN 2001, regional norm building has accelerated with the creation of the Nairobi Protocol in April 2004 and the entry into force of the SADC Protocol in November of that year. Substantial progress was seen in the OSCE region, the Americas and sub-Saharan Africa, as will be discussed. As has already been mentioned, norm building in the Middle East and Asia is almost non-existing, hindering implementation of the Program of Action.110 Therefore, strengthening international norm building is important in order to include countries that are not part of any regional arrangements. There is markedly increasing cooperation between governments and NGOs in implementing the Program of Action. However, the Biting the Bullet NGOs say that so far this has been done in an ad hoc way, whereas ideally it should be an integral part of the implementation of the Program of Action. Promising regional norm builders are Kenya, Tanzania and Uganda (within the Nairobi Protocol area). Also Brazil and South Africa are examples of states that are strengthening domestic laws and serving as regional norm builders. Nevertheless, the Biting the Bullets NGOs say that most countries are only lightly committed and are relatively ineffectual implementers of the Program of Action or only reluctantly embracing the normative change it calls for. In relation to the specific emerging norms examined here, i.e. the controls on brokering, even though the Program of Action only contained a weak clause on the issue, substantial developments have set the stage for a possible future document regulating international brokering. Multilateral negotiations have also been successful in adopting an international instrument to enable the timely and reliable identification and tracing of illicit small arms. As will be seen, transparency and information exchange have weakly evolved since 2001. Weapons destruction has shown a steady process of norm rise, with successful programs being implemented, even though the Biting the Bullet NGOs call for a more systematic approach to this as well.111

61

Part 2 LEADING INTERNATIONAL EMERGING NORMS

3 THE DESTRUCTION AND DISPOSAL OF SURPLUS WEAPONS

Introduction This case study will examine the emerging international norm on small-arms destruction.1 Generally, it can be said that this norm is becoming increasingly firmly established as acceptable state practice: It seems reasonable to conclude that destruction is increasingly accepted to be the appropriate norm for all or most collected SALW [small arms and light weapons]. Moreover, a significant and increasing number of governments have established policies, procedures and programmes to destroy surplus SALW in official stockpiles and also arms confiscated during criminal investigations.2 Following the three-tiered methodology presented in Chapter 1, a set of policies will be outlined in an effort to trace the key elements of an actual or hypothetical norm (i.e. a set of policies, or components of the norm, that recommend a behavior largely endorsed and advocated by prominent actors), and to show how these were or were not included in the different documents analyzed here.3 To assess this norm development, the case study will identify the moment when a threshold point was achieved – the point at which a sufficient number of states share the same assessment regarding an emerging norm. As seen in Chapter 1, this rarely occurs before one-third of states have accepted the norm.4 In most cases, for an emerging norm to achieve the threshold point, it must become institutionalized within international organizations.5 As demonstrated, empirical studies do not advance criteria indicating when such a threshold point is reached. However, the case study will assess whether the threshold point occurred according to an identifiable pattern. First, it will test whether the norm became institutionalized in an international setting, looking at whether the components of the norm under analysis here were or were not included in the two key UN reports in 1997 and 1999 of the Panel of Governmental Experts on Small Arms (the 1997 Panel Report) and the Group of Governmental Experts on Small Arms (the 1999 Group Report). This will be a useful way to gauge shared assessments within the 65

LEADING INTERNATIONAL EMERGING NORMS

UN General Assembly. Second, in order to assess whether a critical mass of states shares the same understanding regarding the emerging norm on weapons destruction, a summary table (Table 3.1 in this chapter) will be presented to see if the components of the norm are mentioned in at least one-third of the regional and international documents analyzed here, in an attempt to grasp norm development through the chronological analysis of such documents. This will enable us to see more clearly which institutional expressions were more complete and what the chronological order of these documents was. This will complement the examination of states’ declarations and statements, and changes in state practice. It should be noted that this same basic method of analysis, including the use of a table as indicated above, will be used in all the case studies to examine the process of norm development. Obviously, this will vary according to the requirements of a particular case study, but the approach will be basically the same, and the same documents will be examined on each occasion, i.e. those discussed in the section entitled “Legal and political framework on small arms” in Chapter 2 (pages 51–8). This case being examined here is based upon the search for the emergence of a three-track norm with regard to weapons destruction (the details of its components are given in the left-hand column of Table 3.1).6 The following factors are key: • • •

surplus weapons management practice is undertaken, preferably through transparent and public destruction events; in addition, the practice of destruction should also be the norm in postconflict disarmament and demobilization contexts; and the practice of weapons destruction should also be used to eliminate excess weapons in violent cities.7

Weapons destruction: from practice to international norm The development of the norm with regard to small-arms destruction was inextricably associated with the management of surplus weapons, in general in postconflict situations and with regard to excess weapons left over from shrinking post-Cold War armies. The management of this situation has proved to be problematic from the start. A prominent researcher in the field has pointed out that the major reason seems to be economic, in addition to psychological and bureaucratic factors. Even though not extremely costly, to scrap and destroy small arms costs money, and compared to the foreign exchange received from exporting surplus weapons, the economic incentive to sell weapons is strong.8 Considering that many of the Eastern European and former Soviet republics were in an economically desperate situation by the end of the Cold War, it is plausible that they opted for exports rather than responsibly destroying surplus weapons. Also, there was and often still is a bureaucratic feeling among decision makers that something that is still functioning should not be destroyed. The category of 66

THE DESTRUCTION AND DISPOSAL OF SURPLUS WEAPONS

small arms and light weapons was not the subject of any formal agreement or concern in any regional and international forum. Therefore, many transactions were made that were not subjected to any public or multilateral agreement scrutiny. Small arms were not seen as an instrument that would exacerbate violent conflict but as an economic and technical asset. Furthermore, in some countries, the armed forces are required by budgetary regulations to make the best economic use of surplus material. It took the debate leading up to the UN 2001 conference to change these practices. As indicated above, the development of the norm of weapons destruction took place on three tracks. The first track is associated with the realization that in post-conflict situations dealt with by the UN, the processes of demobilization and disarmament had to include a component of weapons destruction to galvanize peace processes. The second track corresponded to surplus weapons originating from excess arsenals across the world following the end of the Cold War, and finally the third track, which developed later, was the destruction of weapons seized in the context of violent crime in cities across the world. The three-tracked potential norm that surplus, post-conflict or illicit weapons must be destroyed began as a practice adopted in an unsystematic fashion and with low degrees of success in some of the UN peace-keeping operations, like those in Mozambique, Nicaragua and El Salvador. As will be demonstrated, this practice slowly started to be embedded as an international practice and potentially an international norm in the 1990s. The first track of norm development took place through a gradual realization, especially among workers involved in peace-keeping operations, that if arms were not collected and destroyed following a peace settlement, they might end up in another part of the world fuelling conflict and crime.9 In addition, arms from conflicts taking place during the Cold War in many parts of the world were re-used in other violence or conflict settings. From the mid-1980s, global levels of military expenditure started to decrease, and after the Cold War, much potential for conversion was created.10 The removal of surplus weapons from societies or from post-conflict situations is a central part of the broader efforts to restrict the availability of small arms and light weapons.11 Many initiatives were carried out across the world with the specific purpose of collecting small arms and light weapons, e.g. in Angola, Mozambique, Bosnia and Herzegovina, Croatia and Somalia. Some of the UN peace-keeping operations carried out in some of these countries, e.g. Mozambique, included a component of destroying weapons. Broadly, there are two types of weapons collection. The type that is conducted in peace-time with the objective of reducing and preventing crime is often, though not always, voluntary, with incentives (and sanctions) included for the purpose of recovering firearms from legal (and illegal) owners. A second major type of weapons collection program is that carried out in peace-keeping settings and post-conflict societies. As many experiences across the world demonstrate (Central America, South Africa, Albania), in post-conflict or unstable situations, weapons are likely to be stolen, 67


falling into the hands of criminals who contribute to the rise of rates of crime. Therefore, the appropriate disposal and destruction of weapons is a crucial component of the stabilization of post-conflict societies.12 Key practitioners in the small-arms debate have pointed to stockpile management and destruction of excess arms as the simplest and most reliable way to prevent proliferation of illicit arms.13 The starting point for the development of the second track of norm development on weapons destruction and the debate on surplus weapons management and related issues relates closely to the end of the Cold War. Previously, the Conventional Armed Forces in Europe (CFE) Treaty on force reductions made strict provisions for the management of surplus weapons. However, the CFE Treaty related only to major conventional weapons, and there were no provisions in it for small arms. With the reduction of forces and the breakdown of the Warsaw Treaty and the Soviet Union, large quantities of surplus small arms became available. Therefore, after the Cold War, two parallel processes started taking place: one was the general downsizing of armies across the globe; the other was the dissolution of the Warsaw Pact, which released many weapons into the global arms market. Both processes resulted in millions of weapons being made surplus from inventories all over the world that had to be somehow managed.14 Other analysts also point to additional reasons for the post-Cold War surplus weapons stockpiling: international disarmament agreements, cessation of hostilities, financial constraints on defense budgets, the modernization of armed forces and the replacement of their equipment.15 In addition, the end of the Soviet era meant that arms from Eastern Europe and the former Soviet Union were sources feeding the black market. Needing to upgrade their forces, ex-Warsaw Pact members disposed of large numbers of outdated small arms and light weapons in the international (illicit) market. The sales of surplus arms, often to undesirable end-users such as insurgent groups or warring governments under international embargo, has proved to be a ready source of revenue to countries in political transition with harsh economic situations.16 The area of conversion studies includes the reallocation of the financial resources of the military sector to non-military purposes; the reorientation of military research and development for non-military purposes; the downsizing of defense industrial over-capacities and the reduction of dependencies on arms production; the demobilization of armed forces; the closure of military bases; and surplus weapons systems. The specific issue of arms destruction, of interest here, falls under the latter category. In the context of the post-Cold War scenario of global disarmament, demilitarization and demobilization, issues of conversion and weapons management became associated.17 Therefore, the next section will look at some cases of state practice within the first and second tracks of norm development that will highlight some of the aspects discussed in this part of the study and verify whether this state practice contributes to furthering norm development.

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Accelerating norm development: changes in state practice regarding weapons destruction18 This study is interested in a more recent development within the international norm-making process that came to be known as “soft” law, i.e. “emerging norms” that start to embed themselves in the practice of states. Soft law therefore encompasses practices that are in effect observed by states even though, rigorously, they are not obliged to do so; however, the fact that they are generally observed, and are expected to be so, gives them a predictive value similar to those norms expressed in hard law.19 This section, therefore, seeks to assess whether the practice of states, or changes to such practice, signifies a consolidation of an emerging norm, in this case, the one on weapons destruction. This study also considers a successful emerging international norm to be one accepted by at least one-third of states. In 2003, 103 states submitted reports to UNDDA; 77 reported on weapons collection and destruction.20 This indicates that if, a decade previously, there was no awareness regarding this practice, in 2003 there is an emerging norm. The flagship case in this regard is South Africa, because it has been consistently following the practice of destroying weapons for almost a decade now, and has been instrumental in influencing others to do so, like Mozambique.

South Africa The UN General Assembly, in its Resolution 54/54, entitled Illicit Traffic in Small Arms, recommended states to take appropriate national measures to destroy surplus small arms and light weapons and confiscate or collect small arms. The destruction process in July 2000 of over a-quarter-of-a-million redundant small arms in the South African National Defence Force stockpile formed part of South Africa’s comprehensive strategy to combat the excessive and destabilizing accumulation of small arms.21 In addition, South Africa has cooperated with the Mozambique government to destroy tons of military weapons in Mozambique through Operation Rachel.22 Following the South African government’s announcement, on 19 February 1999, that it would destroy all surplus small arms rather than sell them, the destruction of a total of 262,667 small arms and parts with a caliber smaller than 12.7 mm by means of fragmentation commenced on 6 July 2000. This project was named Operation Mouflon. These weapons had become redundant and/or obsolete because of the availability of more advanced technology or were confiscated by the South African National Defence Force during military operations. During 1999 and 2000, the Belgian government financed seven operations as part of Operation Rachel. During 2001, the EU financed some of these operations. During the last operation in 2001 and the three operations in 2002, the South African Police Service again made funds available from its national police budget to successfully carry out these operations.23 69


Following the end of the Cold War, various countries in Southern Africa entered into bilateral or trilateral cooperation agreements on arms-management issues. The agreements between Mozambique and South Africa on weapons destruction have perhaps had the most success in destroying surplus weapons. In recognition of the extent of illicit arms smuggling and the damaging effect that this was having on safety and security, Mozambique and South Africa signed an agreement to combat crime in 1995. The agreement allows police services of the two countries to undertake joint operations in response to common safety and security problems. Many of the weapons used in the conflicts in Mozambique have since made their way to South Africa, where there is strong demand for them by criminals. The majority of illegal weapons are smuggled into South Africa by professional, organized syndicates using a variety of criminal methods. In view of the fact that it is difficult to infiltrate these criminal groups, the two countries are cooperating to increase their information-gathering capability in order to determine the exact location of arms caches within Mozambican territory. The joint operations were established to find and destroy weapons within Mozambique.24 Regional norm spillover? South Africa has also been requested by the Lesotho government to assist the Lesotho Defence Force with the destruction of 4,000 surplus and redundant small arms, and also by Tanzania, Mozambique, Uganda and Kenya to help with similar activities.25 Moreover, South Africa has actively participated in the context of the Organization of African Unity (OAU) to develop a common position on the illicit proliferation of small arms and light weapons. These efforts resulted in the Bamako Declaration, which was adopted by the Ministerial Conference convened on this subject on 1 December 2000 (analyzed in detail in this study). At that time, as a member of the SADC Committee on Small Arms and Light Weapons, South Africa had been actively involved in finalizing the Declaration Concerning Firearms, Ammunition and Other Related Materials in the Southern African Development Community26 (also analyzed in detail in this study). The declaration provides the political framework for more concrete cooperation among SADC member states, such as the finalization of the SADC Draft Protocol on the control of firearms, ammunition and other related materials in the region.27 Other instances of state practice28 Other countries manifesting a strong change in state practice from no norm to acceptance of the norm of weapons destruction are Australia, Brazil,29 Bulgaria, Cambodia, Canada, China, Croatia, Denmark, El Salvador, Guatemala, Germany,30 Haiti, Jordan, Kosovo, Liberia, Lithuania, Philippines, Portugal, Democratic Republic of Congo, Guinea Bissau, Mali, Niger, Panama, Peru, 70


Serbia, Sierra Leone, Uruguay, United Kingdom, among others. The OSCE member states destroyed over three million small arms between 2001 and 2003.31 The practice of weapons destruction of surplus, collected or seized small arms is a consolidated practice in most regions. At least 36 states have destroyed some surplus stocks and at least 48 states have destroyed some confiscated or seized arms since UN 2001.32 There is considerable empirical evidence of state practice regarding weapons destruction even by states within the small-arms debate reluctant to accept new international norms on small arms, like China.33 Apart from the experience in South Africa, and to some extent in Brazil, where in both cases norm development is also taking place with the active participation of civil society, in most cases the change in state practice was accelerated as states gathered momentum toward UN 2001, and UN General Assembly resolutions and the SecretaryGeneral mandated periodical reporting on changed practice. Therefore, in the next sections, we will be examining the role of institutions like the UN and other actors in spurring norm making in the area of the destruction of small arms.

Categorizing main actors and their roles in the generation of knowledge on norm building regarding weapons destruction First, the UN role, particularly that of UNIDIR, was key in generating knowledge that did not exist regarding weapons management in post-conflict situations. There were three main norm-diffusion mechanisms at play: teaching, information and socialization. The UN in general played a central role in socializing states and UNIDIR in generating information and recommending courses of policy action (teaching). Therefore, this section will start with the examination of the role of UNIDIR in norm building and end with an analysis of the broader role of the UN in this process. Second, the role of research carried out by think tanks in the field of weapons destruction was important for three reasons. First, weapons management was a new issue, and states did not know how to deal with it. Hence, the work of the research institutions served to guide states in policy-making.34 Second, nongovernmental research institutes were key in putting forward their progressive agenda, i.e. that destruction was the preferred way to deal with surplus weapons and that destruction should be the norm. Third, these researchers were crucial in signaling weapons surpluses as a problem to be dealt with separately. The UN role in weapons destruction, with special focus on UNIDIR In 1996, UNIDIR published a series of studies that were instrumental in examining a number of concrete case studies addressing the role of demobilization and disarmament in conflict-prevention strategies.35 The cases played an important 71


role in knowledge generation about management of weapons and the armsrelated dimensions of peace-keeping after conflict, such as in the secondgeneration style of multi-dimensional UN peace-keeping operations, inaugurated by the operations in Namibia, Nicaragua and El Salvador. These each included a disarmament component, not necessarily including weapons destruction, with varying degrees of success. These studies were part of a major project started in 1994 called the Disarmament and Conflict Resolution Project, which was premised on the systematization of efforts to eliminate excess weapons from post-conflict situations to enable sustained peace processes. The UNIDIR studies revealed the mounting importance of including an effective practical disarmament component in the second-generation peace-keeping operations, highlighting the important relationship between demobilization and disarmament on the one hand, and conflict resolution on the other: The Disarmament and Conflict Resolution Project explored the predicament posed by United Nations peace operations which have focused on short-term needs rather than long-term stability. The project is based on the premise that the control and reduction of weapons during peace operations can be a tool for ensuring stability. In this light the management of and control of arms could become an important component of the settlement of conflicts, a fundamental aid to diplomacy in the prevention and deflation of conflict, and a critical element of the reconstruction process in post-conflict societies.36 UNIDIR studies suggest the immediate destruction or secure storage of the weapons handed in.37 The operations in Angola (UNAVEM I and II, 1989–95), Namibia (UNTAG, 1989–90), Mozambique (UNOMOZ, 1993–5), El Salvador (ONUCA, 1989–92) and Nicaragua (ONUSAL, 1991–5) included, to varying degrees, disarmament components of settlement agreements and their mandates.38 UNTAG did not include weapons destruction, but only collection and storage of weapons.39 UNAVEM I did not include disarmament at all, whereas UNAVEM II included it, but not explicitly, as this UN operation was charged merely with monitoring and verification, even though unserviceable weapons were destroyed.40 UNOMOZ contained an explicit arms destruction element.41 In Nicaragua, weapons were also destroyed, albeit most of them in an unserviceable state.42 In El Salvador, ONUSAL destroyed weapons in 1992 and 1993, but generally the high number of weapons that remained in civilian possession poses doubts as to the extent to which these destruction operations were successful:43 In many peace operations, there has been a certain sloppiness in the transition from conflict resolution to post-conflict reconstruction. For reasons of resource constraints, or eagerness to get out, disarmament 72


has not always been followed-up or implemented with the necessary care. In Mozambique, the UN collected 190,000 weapons, but gave them back to the government (as stipulated in the peace agreement), which in the meantime had been left with a small army that no longer needed all of them (less than 15,000 men). What was collected was, furthermore, a modest part of the total. Large amounts of arms went from Mozambique to South Africa, where the crime rate is one of the highest in the world. A lesson from this and other cases is that arms should more often be destroyed. The cost of letting handguns go through a metal press is negligible.44 Hence, of special note here is the case of Mozambique, because it was one of the first peace-keeping operations to have a weapons destruction component in its disarmament mandate.45 The UN peace-keeping operation in Mozambique, ONUMOZ, demobilized around 100,000 combatants and collected 214,000 weapons. However, only a few were destroyed.46 ONUMOZ acknowledged the need to disarm from its inception. However this objective lost its relevance as the mission proceeded.47 The unruly situations that ensued in these countries with widespread availability of guns demonstrated that the disarmament component was not fully carried out: The failure of the United Nations Operation in Mozambique (ONUMOZ) to effect meaningful disarmament during peacekeeping operations has had serious consequences for both Mozambique and its neighboring South Africa. While completely disarming all individuals would have been an impossible task, the mission failed even to accomplish the more modest goal of destroying the weapons it had collected and earmarked for decommissioning. As a result, since the conflict ended, weapons have continued to circulate and armed crime has risen sharply.48 To counter the problem cited above, civil society in Mozambique has been taking a central role in advancing the norm of weapons destruction. In 1991, the Christian Council of Mozambique initiated a campaign called Swords for Ploughshares. In 1995, this initiative became the Tools for Arms Project. Its main goal is to promote reconciliation and establish a culture of peace in Mozambique. Weapons are exchanged for useful tools or material goods such as bicycles, sewing machines, hoes, radios and construction materials.49 In order to further this impulse toward civil society initiatives and to spearhead norm building at the national level (but falling short of directly requiring states to take specific action but, rather, to gather information on the state of weapons management and make it available for the General Assembly), on 20 November 2000, the General Assembly adopted Resolution 55/33 Q, which reports on results of meetings convened on the issue under UN auspices, as well 73


as those convened by regional organizations and by states. The resolution requests states to provide information to the Secretary-General on the types and quantities of arms destroyed and on the methods of their destruction, as well as legislation and changes regarding weapons destruction. The Secretary-General’s consultations contained information and data provided by a number of member states on the types and quantities of surplus, confiscated or collected small arms and light weapons that have been destroyed, and on the methods of their destruction, socializing states and pressuring them to take action on weapons destruction. This included organizing data and building information in this specific area. Change in state practice is illustrative of norm building on weapons destruction, as detailed in the previous section. The UN’s role in strengthening norm building on weapons destruction at the international level was furthered with the creation of the International Small Arms Destruction Day, which is celebrated on 9 July and is designed to encourage governments to destroy weapons. That event, based on a proposal by the Netherlands, Brazil, Mali and the UK at the conclusion of the preparatory process for the UN 2001, promotes the collection and destruction of weapons that had been used in various conflicts around the world.50 Large weapons destruction celebrations have ensued every year since. In 2001, Brazil promoted the destruction of 100,000 weapons, the largest destruction event in the world. In 2002, on International Small Arms Destruction Day, 10,000 weapons were destroyed. In addition, IANSA has taken on the organization of a Global Week of Action against Small Arms near International Small Arms Destruction Day every year. Innumerable events in many countries were planned for the Global Week of Action, which since 2001 has taken place in June each year, including public education forums, roundtable discussions, lobbying events and press conferences.51 Weapons collection usually involves significant expenditure of funds that are usually lacking in the countries that most need it, as the experiences in the subSahelian region will demonstrate in the next sections, hampering norm development in these impoverished areas, the ones most likely to need a strong weapons destruction norm. There were two funding instruments created under the auspices of the UN, the Group of Interested States (GIS) and the UN Trust Fund for the Consolidation of Peace through Practical Disarmament Measures (UN Trust Fund).52 The first was established in 1998 pursuant to UN General Assembly Resolution 52/38 G of 9 December 1997 to finance weapons collection and destruction, and support the implementation of practical disarmament measures in post-conflict situations. The second funding instrument, the UN Trust Fund, was also created in 1998 on the recommendation of the GIS and is administered by UNDDA. UNDP’s Trust Fund for Support to Prevention and Reduction of the Proliferation of Small Arms is another important source of financial support for weapons collection and destruction projects.53 These two UN-sponsored funds played a role in advancing norm building on weapons destruction, as it supports states in building in needed capacity to implement the Program of 74


Action. A recent UN resolution encourages the GIS to keep lending its support to states to destroy small arms in post-conflict situations.54 The role of think tanks and researchers in norm building By 1995, little political and research action had been undertaken to address surplus weapons in general, including the post-conflict management component discussed above, and this only started to be rectified in 1996 with the UNIDIR studies referred to earlier. Therefore, this section will refer more specifically to the second track of norm development, namely surplus weapons, and detail a number of think tanks and NGOs that played a role in norm building in this area. Drawing on the post-Cold War peace-keeping experiences mentioned before, some governments gradually began to realize that it was a mistake to export small arms indiscriminately, as shown in the UNIDIR studies.55 Weapons that had been sold began to appear in conflicts, e.g. German weapons of East German origin sold to Turkey were used in the fight by the Turkish forces against the Kurds. Countries like Bulgaria and Ukraine were accused of supplying weapons to embargoed UNITA in Angola.56 If we trace this process back historically, a decisive moment that helped catalyze attention to surplus management was the first war against Iraq in 1991. It became evident that the Security Council members had sold weapons to Iraq that were used to invade Kuwait. As a result, the UN Register of Conventional Arms was established. UN members could however not agree to include small arms, though this was often requested, mainly by West European governments. Edward Laurance points out that: “Exporters included commanders of army units and plant managers who were suddenly faced with no money to pay their troops or workers. Given a market for these commodities and no governmental controls, the proliferation was significant and unreported,”57 while Edward Peartree states that: Arms used by the Farabundo Marti National Liberation Front (FMLN) in El Salvador and by the Contras and Sandanistas in Nicaragua during the 1980s have been recently traced to the civil war in Colombia. Sometimes, the migration of arms spans oceans and continents: U.S. origin M-16 assault rifles captured in Vietnam after the fall of Ho Chi Minh City (Saigon) have turned up decades later in Central America.58 In the face of a visible lack of knowledge on surplus weapons management and therefore a lack of policy options regarding weapons management in general, the BICC commissioned many studies. The result was a series of policy research papers that informed states and policy-makers. These were the major sources of information available on the issue at the time.59 Governments needed to act, but the usual response was to try to sell surplus small arms, as there was no international legal treaty prohibiting this (except for countries embargoed by the UN). 75


Another NGO that was important in the norm-building process – and still is – was the London-based Saferworld, which played a role in addressing surplus small arms in particular at the EU level and engaged various EU governments in a political dialogue. The EU members were responsive, and this was facilitated by the fact that many of the small-arms-producing companies in the EU did not have much of a future, since procurement budgets had gone down considerably. Heckler & Koch in Germany, one of the main producers of small arms, was almost bankrupt and was bought by British Aerospace; FN Herstal in Belgium had to be bailed out by the government several times; as did GIAT in France.60 Furthering norm building, another group that advocated proposals regarding weapons destruction was the Biting the Bullet group of NGOs (consisting at the time of Saferworld, International Alert and BASIC). Following the events in Albania, to be discussed in the next section, there were two fundamental principles regarding weapons management that were upheld by the Biting the Bullet NGOs: one is that weapons surplus stocks have to be safely stored by governments, and the other is that governments in possession of surplus weapons should opt for their destruction. In further policy advocacy work, this group of NGOs stated that the UN 2001 Program of Action should contain an unequivocal statement of support for practical disarmament initiatives.61 Therefore, they demanded that UN 2001 should: •

•

explicitly recognize the role of weapons-collection initiatives in the context of both promoting post-conflict peace-building and in tackling violent crime; and establish clear commitments to promote and support the collection of small arms and light weapons in post-conflict regions and other areas where excessive or uncontrolled availability of small arms is a major problem.

It is important to note that the Biting the Bullet group was the only one that acknowledged the importance of including provisions that would allow the treatment of weapons-destruction programs in violent crime urban contexts, the third track of norm development. The final version of the Program of Action ignores this. Nonetheless, this has not stopped action and change at the national level in countries that face violent crime rates as dramatic as countries in civil conflict, as seen throughout this chapter.

Consolidating norm development: path-breaking events There were two developments that contributed to consolidate the emerging international norm on weapons destruction at the global level. One was the action taken by Mali in its post-conflict situation in the mid-1990s, and the other was the unrest in Albania in 1997. The action in Mali was important for norm building as it represented the first time that weapons destruction received high-profile attention in a UN mission. In addition, Mali subsequently took an active role in 76


sponsoring resolutions in the General Assembly that not only heightened awareness regarding weapons destruction and deepened norm building, but also helped to consolidate the small-arms issue in general. Moreover, the activities in Mali helped to catalyze action on the debate and on small arms in general, as shown in Chapter 2. The events in Albania were important for international norm building on weapons destruction as they received considerable high-profile attention within the UN. Mali in the history of small-arms-destruction norm building The Government of Mali, in cooperation with the United Nations, established precedent setting programs to integrate security and development and to collect and destroy arms as part of the implementation of its national peace accord.62 Former President Alpha Oumar Konaré of Mali asked the UN Secretary-General to send a mission to Mali in 1994 to assess the unruly situation caused by a large availability of weapons. The Timbuktu Flame of Peace, a symbolic act that took place in Mali in March 1996, where approximately 3,000 arms were burned, was the decisive event that spurred awareness within the international community regarding the necessity of destroying post-conflict weapons.63 This also served as an impetus for ECOWAS to approve the declaration of the Moratorium on Importation, Exportation and Manufacture of Light Weapons in West Africa on 31 October 1998.64 Therefore, Mali was the country that took the initiative concerning the question of the illicit circulation of small arms and their collection in the affected states of the Saharo-Sahelian sub-region. As the Mali experience showed with the Flame of Peace, and a Security Council report emphasized, experience with the ceremonial destruction of weapons has been proved to have a very significant impact on conflict-affected populations.65 It is effective when there is a presence, and ideally participation, by those who have been directly involved in the conflict. In Albania, a threemeter-tall peace bell in Tirana was cast from the brass ammunition cartridge cases collected by children. In Mali, the site of the original peace flame in Timbuktu currently displays a peace monument made from remnants of the weapons destroyed. In addition, an adjacent park, the peace garden, contains trees planted by individuals, governments and organizations that supported the peace process. Two UN resolutions paved the way to the developments in Mali: Resolution 48/75 F of December 1993 and a year later, Resolution 49/75 M, which requested the Secretary-General to seek the views of member states on effective ways and means of collecting weapons illicitly transferred in affected countries. Resolution 49/75 G of January 1995,66 the so-called “Mali Resolution,” ordered an Advisory Mission to Mali to find the best way of curbing the illicit circulation of small arms and ensuring their collection. This resolution also encouraged the Secretary-General to continue these efforts, in the context of the implementation 77


of Resolution 49/75 G and of the recommendations of the UN advisory missions to curb the illicit circulation of small arms and to collect such arms in the affected states. In Resolution A/50/70 of 12 December 1995 (introduced by Japan), the General Assembly not only established the Panel of Governmental Experts on Small Arms (analyzed in all case studies in detail), but also invited the international community to give appropriate support to the efforts made by the affected countries to suppress the illicit circulation of small arms, which is likely to hamper their development. The mission to Mali also visited Burkina Faso, Chad, Côte d’Ivoire, Mauritania, Niger and Senegal. A conference was held in Bamako on 25–29 November 1996 under the auspices of UNIDIR/UNDP, where an arms moratorium proposal was made. There was another consultation of West African countries held in Bamako in March 1997, where the idea of a moratorium was solidified. At the Twenty-first Ordinary Session of the Authority of Heads of State and Government of ECOWAS, meeting in Abuja, Nigeria on 30–31 October 1998, all 16 heads of state of ECOWAS “solemnly declare(d) a moratorium on the importation, exportation and manufacture of light weapons in ECOWAS member states which shall take effect from the first day of November 1998, for a renewable period of three (3) years.” At the ECOWAS foreign ministers meeting in Bamako, Mali, on 24–25 March 1999, a plan of action was agreed for measures to be undertaken within the framework of the moratorium to create a secure environment for development.67 Mali continued to play a leading role within the General Assembly, building on the momentum created by the Flame of Peace, by furthering its sponsorship of many resolutions within the General Assembly.68 These resolutions were instrumental in gathering efforts not only of the countries in the sub-Sahelian region, but also to raise awareness at the international level regarding smallarms proliferation. These resolutions stressed that the illicit circulation of massive quantities of small arms throughout the world impedes development and is a source of increased insecurity. These actions by Mali prompted meetings of the states of the sub-region to establish regional cooperation. Ultimately these efforts culminated in the Bamako Declaration of 1 December 2000, a key document in this study. This process inspired many other General Assembly resolutions entitled, collectively, Assistance to States for Curbing the Illicit Traffic in Small Arms and Collecting Them.69 And since the fifty-fourth session of the General Assembly, UNDDA has worked closely with UNDP and with members of the GIS – as detailed above – seeking to use its Trust Fund to provide support for projects and programs on practical disarmament and related development issues, including support for programs of weapons collection and destruction. Members of the GIS have made further financial contributions to the Trust Fund, earmarked for a number of projects in countries such as Albania.

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The experience of weapons proliferation in Albania: a further event on the road to norm building During the civil unrest that occurred in Albania in March 1997, the civilian population looted the government arms depots, taking possession of approximately 600,000 weapons.70 President Rexhep Meidani of Albania requested assistance from the UN Secretary-General with weapons collection from the civilian population. The Gramsh Pilot Project was proposed by a UN Evaluation Mission led by Under-Secretary-General for Disarmament Affairs Jayantha Dhanapala, after visiting Albania in June 1998. The under-secretary chose to start the project in the Gramsh district, where 10 percent of the looted weapons came from. The project was composed of three parallel activities: a disarmament component, a development component and a public awareness campaign. The Gramsh Project was the first fully fledged UN project for disarming a civilian population. The weapons collection began in early 1998 and 100,000 weapons were recovered; others may have been supplied to the Albanian fighters in Kosovo or other areas.71 In Albania at the time there were 500 deaths per year caused by small arms, which constituted a huge human cost.72 The shocking situation in Albania catalyzed ongoing action internationally regarding the importance of reducing surplus stockpiles and raised relevant questions of safe storage and stockpile security. The US government contributed US$2 million for the first time for global small-arms destruction.73 Regional and international organizations concerned with the small-arms proliferation problem began to recognize the importance of stockpile management and destruction of surplus weapons. Indicators of this are the 2000 OSCE Document, adopted by 55 countries, which dedicates one session to destruction. In April 2001, NATO’s Partnership for Peace (PfP) extended its Anti-personnel Landmine Destruction Trust Fund to include small arms, encouraging PfP countries to commit to destruction of surpluses and NATO member countries to financially support these initiatives.74

Regional and international norm diffusion This section will demonstrate how the norm on weapons destruction diffused through several regional documents. Table 3.1 lists the components of the norm. It recommends behavior largely endorsed and advocated by prominent actors down the left-hand side, and then along the top considers all the different “arenas,” or documents, in which the components of the norm were or were not expressed. As mentioned at the beginning of this study, norm development is determined through the assessment of the threshold point. This procedure will be followed for each case study. First, it is tested whether the norm became institutionalized in an international setting by looking at whether the components of the norm 79

Panel Report (1997)

National Enactment of laws for safe surplus weapons destruction Regional revision of police and armed forces stocks to assess surplus Safe storage until destruction

No

No

No

No

No

No

No

No

No No

No No

No

No

No

Yes

No

No

No No

Yes

OAS EU EU Joint Conv. Code Action (1997) (1998) (1998)

Documents

General Destruction as the Yes preferred method to deal with surplus1 weapons Clear concept of surplus Yes Implementation and Yes follow-up stages: national coordination agencies for policy and research guidance

Norm components

Yes

No

No

Yes Yes

Yes

Group Report (1999)

Yes

Yes

No

Yes No

Yes

No

No

No

No No

No

No

Yes

No

No No

No

No

No

No

No No

No

No

No

Yes

No No

Yes

Yes

No

Yes

No Yes

Yes

Yes

Yes

No

No No

Yes

OSCE Brasilia Bamako Nairobi Firearms Program SADC Doc. Decl. Decl. Decl. Protocol of Action Protocol (2000) (2000) (2000) (2000) (2001) (2001) (2001)

Table 3.1 Tracking institutional norm development on weapons destruction

No

No

No

No

No

No

No

Yes

Yes

No

No

No

No

No

No

No

No

No

Yes

Yes

No

Yes

Yes

Yes

No

Note 1 “Surplus” designates and encompasses tracks 1 and 2 of norm development.

Global UN responsible for post-conflict weapons surplus management UN promotes weapons destruction best practices workshops Creation of international mechanisms to include: panel of experts, promotion of information exchange and transparency, international monitoring, assistance to states in need

Regional Regional organizations implement coordinating mechanisms to destroy weapons

Transparent (with public events) destruction process (confidence-building element)

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

No

Yes

No

No

No

No

No

No

Yes

No

Yes

Yes

Yes

No

No

No

No

No


analyzed were or were not included in the 1997 Panel Report and the 1999 Group Report. This is a useful way to gauge shared assessments within the UN General Assembly. Second, to assess whether a critical mass of states agree on an emerging norm, the study examines whether the components of the norm are mentioned in at least a third of the regional and international documents analyzed above. As seen, the hypothetical norm on destruction has 11 components, as shown on the left-hand column of the table above, and there are 12 arenas (i.e. documents). The most important component of the norm, i.e. “destruction as the preferred method to deal with surplus,” is mentioned in the majority of the documents (seven out of 12) and more than one-third of the documents (the threshold here) include at least half of the components of the norm.75 This, coupled with the notable evidence of change in state practice discussed throughout the chapter, shows a notable acceptance of the emerging norm on weapons destruction and proves that this norm has reached the threshold point. To assess norm international institutionalization, as seen in the table above, the 1997 Panel Report and the 1999 Group Report are seen as being key documents in norm building for the small-arms issue in general, and in norm building on weapons destruction in particular, as they are the bedrock upon which all the other documents are built. They not only fulfill a function of generating knowledge, but also in recommending key courses of action in policy-making. For instance, the reports adopt the following definition of surplus weapons: they refer to serviceable and unserviceable small arms and light weapons held in stockpiles by military, police and other government forces, and the illicit weapons seized by them that they no longer need. Hence, by 1999, the norm on weapons destruction was institutionalized in an international setting, the UN. At the time that the members of the 1997 Panel of Experts gathered, the full extent of the destabilizing consequences of the excessive accumulation, proliferation, transfer and use of small arms and light weapons was only beginning to be assessed, and yet, the 1997 Panel Report already contributed vigorously to the norm-building processes on weapons destruction. The UN was in a learning curve, and in the process of negotiating and implementing peace accords to end armed conflicts, was assigning high priority to weapons collection and management issues that were identified by the UNIDIR studies referred to earlier. Among them are experiences with the imposition by member states of UN embargoes in conflict situations; the retrieval, collection and disposal of weapons; the reintegration into society of former combatants; and the training of personnel for provision of security to post-conflict societies. For instance, in Central America, one of the major areas of confrontation during the Cold War and a region torn by major ideological conflicts, the UN played a critical role in the conclusion of these conflicts. This region was supplied with large numbers of small arms and light weapons, many of which are still in circulation. As we have seen, they remain available for acquisition by criminal gangs and armed groups, despite the several programs for the collection and destruction of arms. During the Cold War, large numbers of weapons were accumulated in Europe as 82


well. In some instances, the grave weakening or even collapse of state structures, in particular in the post-Soviet republics, has led to a greater availability of small arms and light weapons that are outside state control. The surplus of weapons has often exacerbated the general feeling of insecurity and, in some cases, fuelled ethnic confrontation and even civil war. The conflicts that took place in the former Yugoslavia and Albania are the worst examples.76 Deepening the first track of norm development, the 1997 Panel Report strongly encouraged post-conflict initiatives related to disarmament and demobilization, such as the disposal and destruction of weapons, including weaponcollection programs sponsored locally by governmental and NGOs. Drawing from the peace-keeping operations of the UN, the 1997 Panel Report suggests that guidelines should be developed to assist negotiators of peace settlements in developing plans to disarm combatants, particularly as concerns light weapons, small arms and munitions, and to include plans for the collection of weapons and their disposal, preferably by destruction.77 The first track of the norm of weapons destruction – that excess weapons must be destroyed after conflicts – was the one that most robustly emerged in the 1990s, and the 1997 Panel Report, even though reflecting an early stage of small-arms norm development in general, helped crystallize this trend powerfully. Right after the 1997 Panel Report, in the same year, the OAS Convention does not include specific language addressing weapons destruction as, at that time, this topic had not yet developed as an issue of concern for the American hemisphere. This year did not bring any advances to the norm on weapons destruction at the international institutional level. In the regional European context, the EU Joint Action of 1998 prescribes that the EU must build consensus around the relevant international forums and in a regional context for the effective removal of surplus small arms encompassing safe storage as well as quick and effective destruction of these weapons, preferably under international supervision. It was not until 1999, after the events in Albania and probably resulting from the advocacy led by Mali in the General Assembly, that the norm of the destruction of surplus weapons was again stressed with the Group Report of 1999. This report reflects a growing international involvement with disarmament, weapons collection, and safe storage, disposal and destruction of weapons since the 1997 Panel Report. The 1999 Group Report highlights that, since 1998, the GIS had provided support for some practical disarmament projects, paying special attention to promoting exchanges of national experience and providing support to several workshops on experiences in Central America with weapons collection and integration of former combatants into civil society and to a “train-thetrainers” seminar convened in Cameroon in 1998. Also, in 1998 and 1999, the GIS provided political and financial support for Albania. In addition, the 1999 Group Report calls on the UN, with the assistance of the GIS, to promote and support initiatives to make available systematic information on useful and successful practices and information on available resources with regard to stockpile 83


management, collection and safe storage of small arms and light weapons, and destruction of surplus arms.78 With respect to post-conflict regions where serious problems of availability of small arms and light weapons have to be dealt with urgently, the 1999 Group Report recommends the need to destroy weapons. The fact that this report was endorsed by all states at the General Assembly, and the fact that it contained strong recommendations for measures on standards and norms on surplus management, demonstrates that there was a wide acceptance by states of the norm regarding weapons destruction.79 As indicated earlier in this chapter, the 1999 Group Report also stressed that, since 1997, state practice had dramatically indicated normative change: a number of states had destroyed substantial quantities of surplus arms, including small arms and light weapons, and continue to do so up to the present. For example, the Swedish government has in place a policy of continuous destruction of surplus small arms, leading to the destruction of some 170,000 arms over the past decade. Germany has destroyed almost one million small arms (i.e. over 70 percent of the surplus small arms in the country after reunification in 1990). Similarly, in 1998, the Netherlands adopted a policy to destroy all superfluous small arms.80 The robust development of the norm on weapons destruction consolidated by the change in state practice described so far, especially between 1994 and 2000, was galvanized at the European level with the OSCE Document.81 Its innovative normative contribution is that states agree that unmarked small arms found in the course of the routine management of their current stockpiles will be destroyed, or if those small arms are brought into service or exported, they will be marked. The OSCE Document reaffirmed that effective action to reduce the global surplus of small arms, coupled with proper management and security of national stockpiles, is central to the reduction of destabilizing accumulations and uncontrolled spread of small arms and the prevention of illicit trafficking. The OSCE Document is keen on promoting “best practice” in managing national inventories and securing stockpiles of small arms. The document is the only small-arms instrument to clearly advance indicators of surplus, such as the size, structure and operational concept of the military and security forces; the geopolitical context, including the size of the state’s territory and population; the internal or external security situation; international commitments, including international peace-keeping operations; and small arms no longer used for military purposes in accordance with national regulations and practices.82 The OSCE Document also brought an innovative normative provision on participating states to carry out regular reviews, in particular in connection with changes in national defense policies; the reduction or restructuring of military and security forces; the modernization of small arms stocks; and the acquisition of additional small arms. More importantly, the document reaffirmed one of the main components of the norm of weapons destruction, i.e. that the preferred method for the disposal of small arms is destruction (see Table 3.1).83 The institutional normative development brought about by the OSCE Document did not diffuse to other regional settings uniformly; for instance, in Latin 84


America in the same year, the Brasilia Declaration of November 2000 did not incorporate any specific measures addressing weapons destruction. In addition, in the African context, the Bamako Declaration contained just a few imprecise provisions on weapons destruction, without concretely contributing to the consolidation of the norm in that regional context, prescribing that member states must identify, seize and destroy illicit weapons and put in place measures to control the circulation, possession, transfer and use of small arms and light weapons; and develop and implement national programs for the identification and destruction of surplus, obsolete and seized stocks in possession of the state, with, as appropriate, international financial and technical support. Even though the norm building on weapons destruction in post-conflict situations was catalyzed by the actions of Mali, the Bamako Declaration, named after Mali’s capital, did little to concretely address weapons destruction within Africa. This does not indicate a weak norm development though. Albeit relatively weak at the institutional level in Africa and Latin America, as seen in the preceding sections in this chapter, state practice and civil society initiatives point to a robust normative diffusion process in these regions, as seen in the cases, for instance, of Mali, Mozambique, South Africa and Brazil. In addition, the SADC Protocol has robustly incorporated the norm on destruction, covering the Southern African countries. The Nairobi Declaration contains one clause (paragraph 4) on starting regional cooperation regarding weapons destruction. The importance of the declaration lies in the fact that it sets the stage for the development of strong legally binding provisions on destruction in the Nairobi Protocol of 2004 in the three tracks of the norm: surplus, crime and post-conflict situations (paragraphs 8, 9 and 12 of the Nairobi Protocol). As indicated at the beginning of this chapter, the development of the norm on weapons destruction took place on three tracks. Prior to UN 2001, the Firearms Protocol, to a certain extent, encouraged the development of the third track of the norm addressing the handling of criminal weapons, where state parties must adopt, within their domestic legal systems, measures to prevent illicitly manufactured and trafficked firearms, parts and components and ammunition from falling into the hands of unauthorized persons by seizing and destroying such firearms, their parts and components, and ammunition. Leading up to UN 2001, it is noteworthy that the Preparatory Committee for the conference recommended that the first day of the conference be proclaimed International Small Arms Destruction Day, calling upon states to organize, on a voluntary basis together with NGOs and civil society, public events for the destruction of small arms and light weapons and to ensure the widest possible dissemination of information about the events, including through national and international media. The negotiations that led up to the final version of the Program of Action are analyzed here through a compilation of each state’s statements on each section of the document during the negotiations. A total of 40 countries (or groups of countries, like the EU)84 have expressed their opinions regarding destruction. 85


The most outspoken were the EU, the United States and Japan.85 Paragraph 18 of the final version contained statements by Australia, the EU, Israel, Nigeria, Norway and the United States. The EU proposed a very advanced set of policies for assessing “surplus” drawn from the OSCE Document that were not included in the final version. A proposal was backed by Norway to add indicators of surplus and suggest text identical to section IV, A2 and 3 of the OSCE Document.86 The United States and Australia proposed that surplus weapons should be disposed of, normally through destruction, building on the institutional normative development that preceded UN 2001, as seen in the chronological institutional analysis in Table 3.1. This is a good indicator that a norm on “destruction of surplus weapons” was established as the preferred weapons-management practice amongst states. To confirm this, the most advanced proposal came from Canada, recommending that the destruction of weapons, i.e. their actual removal from the world’s excessive accumulation, must be a key element of the Program of Action: Para. 6: Destruction of weapons, their actual removal from the world’s excessive accumulation, must be a key element of the Program of Action. We therefore suggest deleting the last sentence and replacing it with the following stronger formulation (which also contains elements similar to those in para. 15): “To ensure that all collected, confiscated or seized weapons are expeditiously destroyed, once due legal process is complete.”87 The Australian delegation proposed that the clause on destruction of surplus small arms and light weapons should include a provision that this must be done in accordance with effective and environmentally sound procedures. The EU, India, Malaysia, China and Russia backed this proposal with a request to the Secretary-General to develop a reference manual on ecologically safe, costeffective, efficient and environmentally sound methods of small-arms and lightweapons destruction. These proposals were incorporated in the final version of the Program of Action, which confirms that states would abide by the “report of the Secretary-General of the United Nations on methods of destruction of small arms (S/2000/1092) of November 2000.”88 Argentina, India, Madagascar and the United States proposed public destruction events in the interests of awareness raising and confidence building. This symbolic measure was incorporated into the final version of the Program of Action. The EU proposed an advanced and detailed set of measures on supporting disarmament in the context of demobilization of ex-combatants and their subsequent rehabilitation and reintegration into civil society, as well as the collection and destruction of illegally held small arms and light weapons, the destruction of surpluses, and the inclusion, where required, of specific provisions in peace agreements. To attain these goals, the EU stated its intention to 86


incorporate measures for the collection, control and destruction of illicitly held small arms and light weapons into the mandates for peace-keeping operations, and to include language in peace agreements on weapons destruction. In addition, the EU also advanced specific provisions that were proposed to imprint a deeper humanitarian scope on the document, advocating the support at the international, regional and sub-regional levels for disarmament and demobilization of ex-combatants, including of children, and their subsequent rehabilitation and reintegration into civil society.89 Nonetheless, these important references to the humanitarian dimension of destroying weapons were stripped from the final version of the Program of Action. It is worth noting that even though Mali occupied a prominent place in spurring awareness regarding the importance of destruction of weapons, it was not very vocal in its statements during the negotiation of the final version of the Program of Action. There is a clear development of the norm on destruction of weapons, more geared to the context of post-conflict situations and the absence of references to the need of destruction of weapons in “peaceful” societies that suffer from urban violence. Among the three tracks of normative development analyzed here – post-conflict excess weapons, surplus arsenals and illicit weapons in urban crime – the first track is more developed in the Program of Action, probably due to strong EU advocacy that was more focused on postconflict situations. After UN 2001, and following the chronological analysis of the table given above, the SADC Protocol is the only document to consolidate the norm on weapons destruction in all its three tracks. State parties undertake to identify and adopt effective programs for the collection, safe storage, destruction and responsible disposal of firearms rendered surplus, redundant or obsolete through: peace agreements; the demobilization or reintegration of ex-combatants; and the re-equipment or restructuring of armed forces or other armed state bodies. In addition, state parties agree that firearms, ammunition and other related materials rendered surplus, redundant or obsolete through the re-equipment or reorganization of armed forces or other state bodies should be securely stored, destroyed or disposed of in a way that prevents them from entering the illicit firearm market or flowing into regions in conflict, or to any other destination that is not fully consistent with agreed criteria for restraint. The SADC Protocol endorses the emerging norm that destruction is the preferable method for handling surplus, prescribing the destruction of surplus, redundant or obsolete stateowned firearms, ammunition or other related materials. Moreover, the SADC Protocol consolidates the third track of norm development with a provision for lawful firearm holders to voluntarily surrender their firearms for destruction by the state, and illegal firearm holders to give in their firearms for destruction, and, in such cases, the state may consider granting immunity from prosecution.

87


Main mechanisms of norm diffusion The mechanisms for the diffusion of the emerging norm on weapons destruction were principally the dissemination of information for initiating the agendasetting and issue-framing processes, socialization and teaching. The UN was the main site for norm formation and diffusion through these norm-building mechanisms. The most fruitful initiatives that have provided impetus for norm building were the UNIDIR studies mentioned earlier, which are a comprehensive assessment of peace-keeping operations undertaken during the 1990s, including their successes and shortcomings in post-conflict management. In addition, the Secretary-General’s consultations provided the ideal forum, through the mechanisms of socialization, for bringing the stimulus for change in state practice toward superfluous weapons destruction as the emerging norm in many countries. The two principal events furthering norm creation and initiation of new practices on weapons destruction in the international arena were the crises in Mali and Albania. These events received high-profile international attention, placed weapons destruction at the center stage in their management, and furthered action within the General Assembly, giving incentive to the creation of multinational weapons destruction funds. By 1995, little political and research action had been undertaken to address surplus weapons. Researchers in prominent think tanks mainly used the mechanism of dissemination of information. This process involved the generation of knowledge about the issue and the dissemination of information – especially information for governments on courses of action. The first hypothesis tested here (see Chapter 1), namely that “non-state actors are stronger than other actors in advancing norm building on small arms,” can be accepted by acknowledging the extent to which NGOs have contributed to norm setting and the dissemination of information. Confronted with a conspicuous absence of knowledge on surplus weapons management and therefore policy options, BICC published a series of studies that became major sources of information on the issue at the time, which informed states and policy-makers. Beyond BICC, also at the European level, it was especially the NGO Saferworld in London that addressed the question of small arms in general, and surplus small arms in particular, and engaged various EU governments in a political dialogue. Moreover, Saferworld, as part of the Biting the Bullet group, played an important role in advocating for provisions for the treatment of weaponsdestruction programs in violent crime contexts. Therefore, the role of research carried out by think tanks in the field of weapons destruction was important to guide states in policy-making, in order to advance a progressive agenda, i.e. that destruction was the preferred way to deal with surplus, and in signaling weapons surpluses as a problem to be dealt with separately in the policy-making agenda within the small-arms debate. The second hypothesis guiding this study, namely that “a coalition of likeminded states is stronger than other actors in advancing norm building on small 88


arms,” is rejected in this case study. Unlike the case of the activities of illicit brokers (see Chapter 4), where Norway and Canada formed a coalition that advanced norm building, in the present case, there is no coalition of like-minded states. The UN was the main site where norm building was encouraged and promoted. The state initiatives were carried out under the auspices of the UN, such as the GIS. This case study rejects the third hypothesis subjacent to the research question guiding this study, namely that “norm entrepreneurs are stronger than other actors in advancing norm building on small arms.” In the case of the failed norm on banning weapons to non-state actors, for instance (Chapter 8), the active role of norm entrepreneurs promoting the norm can clearly be seen. Likewise, in the case of brokers (Chapter 4), two important norm entrepreneurs were central in generating the learning processes leading to norm creation. However, in the present case, there is an absence of particular individuals who were forerunners of norm advancement, and learning processes for normative change actually occurred within the UN. An intense process of “learning” about the need for undertaking weapons destruction within the UN followed the publication of the UNIDIR studies and was furthered by events in Mali and Albania. Mali played a crucial role in sponsoring resolutions that called for assisting states worst hit by weapons surplus problems. In this process, the role of the Secretary-General’s broad-based consultations on illicit trafficking in small arms and light weapons was fundamental in galvanizing the processes of diffusion of information and learning among states, as mentioned earlier. As a consequence of this learning process, two funding instruments, mentioned above, were created under the auspices of the UN, i.e. the GIS and the UN Trust Fund. The robust development of the norm on weapons destruction consolidated by the change in state practice, especially since 1998, is being galvanized at the European level with the OSCE Document, in Southern Africa with the SADC Protocol, in East Africa and the Great Lakes within the framework developed by the 2004 Nairobi Protocol, substantially in Latin America in the context of the OAS Convention; and vigorous activity from civil society, mainly in parts of Africa and Latin America. Table 3.2 Mechanisms and actors for norm diffusion on weapons destruction Mechanisms Information

Learning/socialization

Main non-governmental actors BICC Saferworld

Biting the Bullet

Leading norm entrepreneur None Main governments involved Mali and Germany Most evolved norms UN Program of Action

89

UNIDIR


Weapons destruction, as a preferred method for the management of surplus weapons, emerged and diffused as an international norm throughout the 1990s with varying degrees of robustness in different regions. This is evident not only through the analysis of documents and declarations agreed by states but also through state practice examined here. This wealth of multinational actors acting on several societal levels, at the national, regional and international levels, deepened international norm making.

90

4 REGULATING ILLICIT ARMS BROKERING

You need a licence to go fishing, to marry, to drive a car, you even need a licence to run a raffle. But you don’t need a licence to broker and traffic in arms. (Stephen Byers, former UK Trade and Industry Secretary)

Introduction The illicit work of international arms traffickers poses serious problems to regions in conflict and exacerbates the challenges associated with the unrestricted spread of small arms. This case study will examine the emerging norm on controlling illicit gun brokering that diffused throughout the 1990s amongst the many non-state and state actors involved in the small-arms debate.1 It is important to note that the creation of measures to control illicit arms brokering prior to UN 2001 was a completely new multilateral issue, not only within the international small-arms debate, but also within the international agenda in general. In 2003, 50 percent of the 103 states that reported to UNDDA addressed the question of small-arms brokering, reflecting a robust emerging norm.2 The emerging international norm on reining in illicit brokering emerged from a “normative vacuum,”3 i.e. from an absence of understanding or knowledge about the issue. In other words, there was no accurate information about it, nor any previously existing normative structure, as in most other case studies examined here. Therefore, for this chapter, an attempt was made to find a shock event that spurred international attention and subsequent policy and research actions. This event was provided by the Rwandan genocide of 1994 (see below, pages 93–50). With the aim of verifying the regional and international processes of norm building, the chapter will outline a set of policies (components of the norm) in an effort to trace the key elements of an actual or hypothetical norm (i.e. a behavior largely endorsed and advocated by prominent actors). In the case of controlling the illicit activities of arms brokers, the hypothetical norm is based upon components of the Model Convention of the Registration of Arms Brokers 91


and the Suppression of Unlicensed Arms Brokering produced by the Fund for Peace.4 This model convention was largely endorsed by the NGOs and research groups prior to UN 2001, in the processes of influencing and drafting proposals leading up to the conference.5 As others, this case study will examine norm emergence principally until 2001, since UN 2001 was the watershed event in the small-arms debate, and then examine how the norm emergence consolidated and deepened regionally and internationally until the present. Components of the norm (detailed in Table 4.1) include the following: • • • • • • • •

states shall create, modify or include legislation that typifies illicit brokering activities; there shall be a clear definition of brokers and brokering activities; each state shall require brokers to register their businesses; a license for each brokering activity shall be required with detailed identification; criteria for the carrying out of arms-brokering activities shall be provided in accordance with international and humanitarian law; each state shall ensure enforcement of breaches of the law; there shall be enhanced regional and global cooperation for transparency and information exchange; and offenses shall be deemed to include reciprocal extradition measures.

Basically, the hypothetical norm states that each state should establish clearly defined legislation over brokers and brokering activities, including proper enforcement and punishment of offenses (including extradition measures), and acknowledge the dictates of international and humanitarian law in this regard. Among the innovative normative standards proposed by the hypothetical norm is that states must prohibit brokering activities and refuse to grant licenses if the brokering activities will, or seriously threaten to: • • • • • • •

result in acts of genocide or crimes against humanity; violate human rights, contrary to international law; violate international humanitarian law; lead to the perpetration of war crimes contrary to international law; violate a UN Security Council arms embargo; support international terrorism; and/or result in a breach of a bilateral or multilateral arms-control or non-proliferation agreement.6

Following the three-tiered methodology presented in Chapter 1 to assess norm development, this case study will identify the threshold point, i.e. the point at which most states share the same assessment regarding an emerging norm. The basic procedure will be identical to that followed for the norm on weapons destruction discussed in the previous chapter. 92

REGULATING ILLICIT ARMS BROKERING

The Rwandan genocide: the catalyzing event for international norm building? The United Nations commission of inquiry attempting to determine the origins of weapons having arrived in Rwanda in violation of the international arms embargo produced very scanty results, at a disproportionately high cost in terms of the effort expended. At the present time, embargoes on small arms and light weapons imposed by the international community are very frequently violated due to the absence of any possibility of identifying, and therefore prosecuting, the persons responsible. Putting an end to the impunity of arms traffickers would certainly be a powerful preventive measure with regards to such traffic.7 Kenyans based in London brokered the delivery of seven large cargoes of small arms worth $6.5 million, using an offshore company, MilTec Corporation. They worked with another UK air cargo broker in Windsor to arrange secret charter flights from Tirana and Tel Aviv between mid-April and mid-July 1994. The arms deliveries to the nowexiled Rwandan armed forces arrived as they were then carrying out the genocide in Rwanda, even during the time when the mass killings were being reported daily by the international news media.8 According to the literature on norms, it is usually a shock event that stimulates normative change and generates policy actions to curb the problems associated with the perceived shock. It would seem that the main shock event that spurred researchers and policy-makers to learn about and devise solutions to illicit arms brokering activities was the genocide in Rwanda. Brokering arms internationally has become an issue primarily because it has been one of the main ways in which UN sanctions of arms embargoes have been broken since the Rwanda genocide in 1994. When studies emerged on how arms embargoes had been violated in Rwanda and Angola (involving UNITA there), and later in Sierra Leone and Liberia and other places, reports were published by NGOs and researchers that led to the issue being addressed by a number of governments. The reports by Amnesty International and Human Rights Watch in May and June of 1995 on how the perpetrators of the Rwandan genocide were armed became the subject of discussion in the UN Security Council in August 1995. This was the first time that the UN set up an international commission of inquiry.9 Documents from the military archives of the regime that planned and carried out the genocide in Rwanda, as well as the proceedings of the UN Commission of Inquiry, proved that the main foreign brokers and shippers involved in arming the perpetrators of the 1994 genocide operated in the UK, France and South Africa. Their networks were based in Albania, Belgium, Bulgaria, Egypt, Israel, Italy, the Seychelles, the 93


former Zaire (now the DRC) and various offshore financial centers. None of these brokers were charged with the crime of complicity with genocide. Other analysts cite as the most egregious examples the failure in prosecuting traffickers who armed genocidal forces in Rwanda and rebels in Angola, despite international arms embargoes.10 The driving impetus eliciting response from the international community involved reports published in mid-1995 by Human Rights Watch and Amnesty International of arms deliveries via airports in the DRC near the border with Rwanda.11 These reports described the recent secret transfer of weapons and ammunition from several countries, including Albania and Bulgaria, to the exiled Rwandese armed forces in eastern DRC by traders in the UK using aircraft registered in Ghana, Nigeria, Ukraine and Russia. In the DRC and other countries, commanders of these exiled forces who were responsible for crimes against humanity and acts of genocide purchased or negotiated transit facilities for these military supplies. They were able to evade the February 1995 UN Security Council call for suspected perpetrators of genocide to be arrested and tried in cooperation with the International Tribunal on Rwanda. The exiled army and militia had been given bases to regroup and received military training. This training involved not only Hutu exiles from Rwanda, but Hutu exiles from Burundi as well. The exiled Rwandese armed forces have used imported weapons and ammunition to commit further human rights abuses, particularly political killings. Although the majority of the mass murders that began in Rwanda on 6 April 1994 were carried out using local farming implements such as machetes and hoes, the killings were largely initiated or supervised by members of the security forces who had more sophisticated light weaponry. Commentators have pointed out that Amnesty International reported on arms brokers based in the UK delivering arms from Albania, Bulgaria and Israel, whereas Human Rights Watch focused particularly on the officially sanctioned Chinese and French arms deliveries and on supplies brokered from South Africa.12 These disclosures prompted the establishment of an International Commission of Inquiry created pursuant to Resolution 1013, 1995, of the Security Council, to investigate, among other things, reports relating to the sale or supply of arms and related material to former Rwandan government forces in the Great Lakes region, in violation of Security Council Resolutions 918, 997 and 1911. The unprecedented atrocities committed in the Rwandan genocide helped to produce awareness of the work of illicit arms traffickers operating internationally, taking advantage of the absence of laws regulating their activities. In this process, NGOs like Amnesty International and Human Rights Watch were instrumental in raising awareness about the problems associated with illicit arms brokering in perpetrating such crimes in the context of widespread violations of UN Security Council embargoes. Once the reports mentioned above were made public and widely circulated in an intense process of advocacy and teaching about this entirely new problem, concomitantly trying to shame the arms suppliers, the next step was to define what constituted “illicit brokering activities” and 94


to define the dimensions and extent of this phenomenon of the post-Cold War world.

The intricate issue of illicit arms brokering: explaining the obstacles to norm building First, let us define some key terms: Arms dealers engage in three types of commercial activity: 1) retailing and wholesaling, acting as a merchant buying and selling quantities of arms; 2) brokering, arranging or facilitating arms deals, so as to benefit materially from the deals, without necessarily taking ownership of the arms; 3) trafficking, contracting transport facilities, carriers and their crew to deliver arms cargoes, ensuring that storage, ports and routes are available to complete each deal, but not necessarily carrying out the actual transportation. Transport agents making such arrangements include “shipping agents and brokers,” “freight forwarders” and “charterers.” Shipping means trafficking by sea, air or road. The vessels/vehicles used are usually leased or chartered.13 The large post-Cold War surplus stocks increased the possibilities for transactions by arms brokers. During the Cold War, fixers were needed for usually covert governmental transactions. Within the globalized post-Cold War world, their work has become easier and sometimes they can work under the umbrella of legality, using offshore accounts for payments. Illicit arms brokering is inextricably intertwined with globalization. In many ways, the globalized economic world facilitates the work of arms traffickers: To cover up their trail – for legal or purely ethical reasons, but also to secure their future business prospects from unscrupulous customers – arms fixers establish intricate international networks of sub-contractors, front companies and devious transport routes. Some also use the same techniques for trafficking in other controlled or illegal goods.14 Hence, the solution to the problem is not national. Few countries have strict laws to control the activities of gun runners. Furthermore: The increasing globalization of trade and electronic info-commerce make it easier than ever for experienced arms dealers and operators to circumvent national arms control systems and to exploit the weakest links in a fragile international regulatory chain. Globalization has enabled the aviation industry to move away from traditional public 95


ownership and regulation. Cross-border mergers between airlines, marketing alliances, leasing, chartering, franchising, and offshore registration of fleets, crews and companies all make it very difficult to monitor and regulate the airspace and freighting industry. Brokers and shipping agents have become skilled exploiters of these new market realities.15 Pioneer observers of the problems associated with brokering mentioned several hurdles in controlling the activities of brokers and herein lies the major obstacle to norm building in this area. Among these, the greatest problem is the absence of coordinated mechanisms and harmonized laws, lists of services and materials, and the ensuing lack of enforcement. There are common underlying problems in national systems. •

•

•

•

The first relates to the scope of controls that are uncoordinated among the several jurisdictions. Therefore, brokers take advantage of national control lists that exclude items, and control lists that are inconsistent or even contradictory across jurisdictions. The second problem is export licenses that are not all linked to a written authorization. Most European countries do not have a system for verifying deliveries of small arms to an end user. The third problem is loose or vague import licenses that are not tied to the actual quantity of weapons imported nor to the verification of who will actually be the end recipient of the weapons. The fourth problem is transit and transport documents that usually do not bind the shippers and forwarders responsible for their cargo. In addition, the transit documents are usually copies of the export licenses that can be used many times by different people.16

The most recent analysts highlight similar and related obstacles dogging a fully robust international norm on brokers some years after UN 2001: there is no agreement regarding the criteria that states should adopt when granting or refusing licenses for brokering transactions. This lacuna is ultimately caused by lax state responsibility that hinders the effectiveness of multilateral arms treaties. What is more, some states engage only lightly when authenticating correct arms delivery and end-use, giving room for the work of illicit brokers.17 Very few states regulate the full range of brokering activities, so brokers can easily establish themselves in countries with lax or non-existing laws. Only 25 states have explicit regulations on brokering. Many of these are ambiguous and may lead to circumvention.18 This indicates that effective solutions to the problems associated with arms brokering will have to come about through an internationally based instrument. Given the fact that arms brokering is an international problem, the normative solutions to it will probably have to be international as well. As will be shown below, American law is the only legal system that covers the full range of such activities: 96


The American Law would cover the arms brokering and trafficking activities of all citizens at home and abroad, regardless of their shifting residences or company registrations. Such a law, if accompanied by criminal sanctions, would act as a stronger deterrent to arms brokers and traffickers who migrate from country to country to escape proper regulation.19 The solution to these problems lies either in each country implementing its own comprehensive piece of legislation addressing brokers, or an international document that would harmonize action in this regard. This is because the little legislation that exists is hampered by the unfettered movement of brokers who can easily move to states where there is no legislation. Hence this is a case that, in effect, seems to call for an international normative approach, as scattered national approaches seem ineffective in defeating the purposes of arms traffickers. Therefore, the next section assesses the sources and motivations for the ongoing international norm-building process on controlling illicit arms brokering. Controlling illicit brokering activities: international norm building from scratch According to the international relations research on norms, the emergence of a new international norm does not appear in a normative vacuum, i.e. there is often a supportive normative structure to enable the new norm to thrive. However, there was no previously existing normative framework in place where the potential international norm on the need to control brokering activities could diffuse, as in the case of transparency, where there is already an ongoing process of transparency regarding weapons of mass destruction; or in the cases of marking, or civilian possession of arms, where there were ongoing national practices that served as the “sources” or as the “enabling normative framework” for spurring normative formation at the international level. In the case at hand, as in that of weapons destruction, there was very little state practice that served as a precedent, as these topics emerged as a new preoccupation in the post-Cold War environment. Nonetheless, given the complexity of the case of brokers, and the ensuing complexity of norm building in this regard, this study sought to find at least a minimum base of similar international legislation that might serve as the foundation from which an emerging international norm could build. The practices of states may be influenced by international actions by significant international organizations, as will be seen in most of the case studies in this book. The many UN General Assembly resolutions affect the ways in which states act to various degrees. If such resolutions indeed influence the practices of states, there is then an emerging customary law process. Also noteworthy here are the “guidelines” or “principles” recommended by international organizations and influential organs such as the General Assembly in influencing changes in state practice.20 97


In 1996, the UN passed a resolution entitled Guidelines for International Arms Transfers.21 This resolution defined illicit arms trafficking as being: “that international trade in conventional arms which is contrary to the laws of states and/or international law.” The principles agreed in this resolution represent a certain framework; however, they are too vague to address the intricate problems associated with brokers, because if there are no laws, codifying a wrongdoing is unattainable, as there is no codification of the wrong act, i.e. illicit brokers profit from loopholes in, or lack of, laws. As seen in the preceding section, there are usually lax laws or no laws, and therefore brokers move to states with legal systems possessing these characteristics to conduct their business. There is a need for more specific shared normative standards: the International Law Commission (ILC), in its commentary on state responsibility, has concluded that “a state that knowingly supplies arms to another state for the purpose of assisting the latter to act in a manner inconsistent with its international obligations cannot escape responsibility for complicity in such illegal conduct.”22 This emerging international customary law obligation reinforces an important part of international treaty law, such as the Geneva Conventions, where common article 1 requires all states to “respect and ensure respect” for international humanitarian law. A state that deliberately permits an arms transfer to a destination knowing the intended recipient is likely to use the arms for serious war crimes is possibly itself complicit in such acts.23 Also of relevance for the analysis of norm-building processes is whether state practice can give rise to customary international law:24 Customary international law develops from the practice of states. To international lawyers, “the practice of states” means official governmental conduct reflected in a variety of acts, including official statements at international conferences and in diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern.25 In a field where there is almost no national law available to serve as a model, if there is one law that is remarkably complete, can this be the source for the formation of a similar law, but at the international level? The best-articulated existing law on international arms brokers is the American one, introduced in March 1998.26 It requires any American citizen wherever engaged in the brokering of arms to first register and obtain prior written approval for each transaction from the Office of Defense Trade Control of the US Department of State. This law requires US citizens or people under American jurisdiction to: 1 2 3

be on a bona fide public register; seek prior licensing authority for a transaction involving their commissioned role as an intermediary; and subject any transaction to post-delivery verification. 98


However, the lack of transparency on publishing the names in the register and on the granted licenses mitigates the effectiveness of this law.27 The strength in the American law lies in that it broadly defines brokering activities to include transportation, financing, freight forwarding or any other action that facilitates the manufacture, export or import of a defense article or defense service. The most important strength is that citizens and those under American jurisdiction cannot escape the force of the law (i.e. it claims extraterritorial jurisdiction).28 Despite the substantial innovation this law brings, there are gaps in its substance and practical challenges to enforcement. There are also problems of information sharing and inter-agency cooperation, especially in such an intricate domain as arms brokering: The United States, during the preparatory meetings for 2001, called for the development of model brokering regulations as a first step toward establishing better controls on brokers. The US continues to strongly espouse controls on brokers, having been actively involved in the development of model brokering regulations for the OAS, and having worked bilaterally with a number of countries to develop brokering laws/regulations and law enforcement. As a government with very tough laws on arms brokers, it is a US concern that any international agreement on brokering not be weaker, and thus undercut, the strong national laws/regulations that we have and that other key arms exporting states either have or are developing.29 Later in this chapter, it will be assessed whether or not the American law and efforts carried out by the United States in this regard represent a meaningful source for norm building at the international level. However, in the aftermath of the Rwandan genocide, the shock event that brought about the debate on norm making to curb illicit brokering activities, there was very little knowledge of the issue per se, let alone norm building. As seen throughout this study, knowledge must precede norm making/building, for if any national law is to serve as the basis for an emerging customary law, states must know what the subject matter is about. The next section investigates this process.

The generation of knowledge as a prerequisite for norm building The generation of knowledge is usually the first step in norm building.30 In this regard, there were two meetings in 1998, sponsored by the Norwegian government, that were important in starting a concerted effort to generate knowledge about illicit brokering activities. These Oslo meetings of July 1998 and December 1999 were instrumental not only in financing researchers to investigate the activities of brokers, but also to enable the consolidation of the “coalition of like-minded states” that acted upon norm building on regulating brokering 99


activities. The first Oslo meeting (Oslo I), in July 1998, issued a document entitled An International Agenda on Small Arms and Light Weapons: Elements of a Common Understanding, Concerns and Challenges.31 This meeting commissioned the first book to address the question of illicit arms brokering, namely The Arms Fixers: Controlling the Brokers and Shipping Agents, written by Brian Wood and Johan Peleman (widely cited here), which was financed by the Norwegian Ministry of Foreign Affairs and sponsored by the Norwegian Initiative on Small Arms Transfers (NISAT) and the International Peace Research Institute, Oslo (PRIO), in collaboration with BASIC.32 The Norwegian government, through NISAT, requested Wood to develop this research in September 1998.33 The Arms Fixers was launched in Oslo in December 1999 during the second Oslo meeting (Oslo II), to which the Norwegian government invited about 20 delegations.34 Wood presented the case studies and the delegates had two days to discuss the issue. At Oslo II, the participating states agreed on an agenda and to recommend the UN to carry out a study on arms dealing through a Group of Governmental Experts, whose report was tabled at the UN 2001.35 This report is comprehensive in setting forth a number of approaches and norms that could be followed by states (it is analyzed in detail later in this chapter). Oslo II resulted in the commission of another important book for generating knowledge in the case of brokers, Running Guns: the Global Black Market in Small Arms (also widely cited here).36 The Oslo II participating states proposed the development of common understandings of basic issues and the scope of the problems related to arms brokering, including the international standards given in Box 4.1. As seen in Box 4.1, the Oslo meetings were instrumental in putting the issue of arms brokers in the spotlight of policy action. Later in this study, it will be assessed whether the like-minded states coalition managed to achieve the aims shown above, as part of the main small-arms documents examined here. So far, this chapter has pointed to the important role of NGOs (in the section dealing with the Rwandan genocide) and of like-minded states (in the present section) in their role of advancing the formation of an international norm on brokering. According to the general three-tiered methodology used here, as laid out in Chapter 1, the next section will go further in detailing such a role and look for other instrumental or subsidiary actors who were involved in the effort to create a norm-building process.

Categorizing the main actors The main actors in the processes of diffusion and influence on the issue of brokering were the leading NGOs and independent researchers who started investigating the problems associated with brokering activities in 1995, when it became clear that the UN embargoes were being systematically violated. They have been the driving force for the inclusion of arms brokering on the small-arms agenda. 100


International • • •

• • •

Develop common understandings of basic issues and the scope of the problems related to arms brokering. Consider the insertion of clauses on brokering activities in legally binding UN Security Council embargo resolutions. Include appropriate provisions on brokering in relevant international legal instruments. In particular, the proposed provision in the Draft Protocol on Firearms would make a significant contribution to a global approach to regulating brokering of arms. Develop improved international standards on documentation to reduce fraud. Enhance measures between exporting and importing countries to ensure that shipments are not diverted. Develop model brokering legislation and regulations, including comprehensive definitions, in order to achieve more effective national control on brokering in all its aspects, as well as related activities. National

•

• •

Encourage greater national commitment to implement measures to control brokers and brokering, e.g. by regulation, authorization and/or registration, including prior license requirement. Establish national legislation and enforcement systems on small-arms brokering where none exist and criminalize violations. Offer outreach/training for the adoption of suitable legislation and effective enforcement mechanisms, including industry awareness building, to countries wishing to improve their systems. Information exchange

•

•

Exchange information bilaterally, in regional organizations and in other appropriate forums on legislation and enforcement systems concerning brokering and related activities. Such exchanges could, for example, identify loopholes in existing laws and enforcement practices. Establish cooperative measures to share information on illicit traders (see the International Atomic Energy Agency (IAEA) information exchange on illicit trafficking of nuclear material).37

Box 4.1 What like-minded states wanted at Oslo

101


The most important NGOs to launch the issue were Amnesty International and Human Rights Watch. Their reports were taken to the UN Security Council meetings and helped to establish a UN commission of inquiry into the Rwandan genocide (see below). These two NGOs were key in publishing timely reports after the realization that the arms embargoes were being consistently violated. This was coupled with an important element of campaigning that was crucial for convincing governments to act upon the creation of measures to address arms brokering.38 There were two main driving forces that encouraged the international community to take action regarding the control of illicit brokering activities. One, as seen in the earlier sections of this chapter, was the influence of NGOs, while the other that helped further this ongoing process of norm building was the publication of the UN reports concerning the violations of the arms embargoes on Rwanda and Angola, from 1996 to 1998.39 The UN Commission of Inquiry on Arms Flows to the Perpetrators of the Rwandan Genocide “provided an authoritative understanding and a comprehensive picture of the role of arms traffickers in the dynamics of post-Cold War conflicts.”40 From that time onwards, there was a growing consensus among UN officials and other people working with the conflicts, not only in Angola and Rwanda, but also in Sierra Leone and the DRC, on the need to restrain the activities of brokers. During the UN 2001, 79 countries raised the necessity of creating more rigid standards regarding the activities of arms brokers.41 Among the governments, the Norwegians started playing an active role after the Rwandan genocide. As mentioned in the preceding section, they sponsored the book Arms Fixers, a cornerstone in the generation of knowledge about brokering activities. Politically, the participation of the Norwegian government was instrumental in increasing the impact of the work of the NGOs.42 The Norwegians at that point had a very close relationship with the Canadians, as they led the Ottawa process. Therefore, when the Canadians realized that Norway was granting importance to the issue, they emulated the same approach. Thus, countries that were playing a progressive role in this issue were Norway and, to a lesser extent, Canada. Nonetheless, the interests of the governments followed those of the NGOs.43 Among the principal independent researchers, activists and field workers whose work fostered normative development on brokering activities was Brian Wood from Amnesty International, widely cited here. Wood was involved with Amnesty International as one of the principal investigators, researchers and advocates from the beginning of the process. He was a key expert in providing the UN with information concerning the violent activities of the Revolutionary United Front (RUF) in Sierra Leone. A researcher whose work has already been repeatedly cited here, who was the main contributing advocate for international norm building on curbing illicit brokering activities, was Loretta Bondi, the Director of the Cooperative Security Program at the Center for Transatlantic Relations at Johns Hopkins University. She was key in leading advocacy efforts 102


to persuade states preceding UN 2001. The model convention Bondi proposed was the basis for a future legally binding international instrument on arms brokering. NGOs have “set a high bar” for the international community to aspire to, and, to some extent, they energized the issue; however, this is only a partial measure of their impact or effectiveness in practical terms. Some observers argue that, on the issue of brokering – a complex and difficult issue with non-proliferation, arms control, law enforcement and commercial trade implications – governments have set the pace and been more effective in actually establishing norms and motivating real change, and NGOs did not succeed in really motivating the norm-building process at the international level.44 The governments of Norway and the Netherlands have aggressively pushed the brokering agenda and sought the establishment of international common understandings. Other actors played a subsidiary role in fostering an international norm on brokers. One researcher who was strongly engaged in campaigning on the necessity of creating tougher standards on the issue of brokering was Kathi Austin,45 first at Human Rights Watch and then at the Fund for Peace. As she herself says: Over the past twelve years, I have tracked licit and illicit arms flows to conflict zones, particularly in Africa, and in doing so, have spent a significant part of my time in the company of arms traffickers and brokers. My access to this underworld was initially possible because arms networks did not fear the threat of exposure by a seemingly powerless non-governmental investigative researcher.46 Kathi Austin observed the activities of illicit brokers closely and discovered the ways they use to evade the law. In her work, she also pointed out how privatization of security is connected to brokering activities. This constitutes one of the main elements of the problem.47 Later, and approaching UN 2001, another non-governmental group that called attention to the links between privatization of security and brokering activities was Biting the Bullet, a coalition of NGOs in the small-arms control debate (consisting at the time, of Saferworld, International Alert and BASIC) that advanced proposals on the policy side. In an important publication, the coalition shows that the increasing privatization of the international arms trade has meant the growing dependence on private companies and arms brokers by governments. The report suggested measures to be undertaken by states as part of the UN 2001 Program of Action.48 These are outlined in Box 4.2.

103


1

2

3

4

5

An unequivocal acknowledgement in the text that unregulated arms brokering and shipping is a problem that needs to be addressed by all states. A commitment to develop model regulations by the time of the first BMS, progress in arriving at a common understanding of the nature of the problem, and plans for how to address it through the development of legislation and enforcement capacity. The draft Program of Action must also state that such model regulations be based upon registration, licensing and mutual respect for extradition arrangement in the context of enforcing controls on arms brokering and transport agents. A commitment to establish a mechanism whereby states can learn from each other’s experience in tackling illicit arms brokering and transportation, e.g. by requiring states to exchange information on illicit or unregulated activities, possibly through Interpol. In this event, a commitment to strengthen and enhance the capacity of Interpol would also be required. A commitment to the enforcement capacity of states through the provision of international assistance and training packages.

Box 4.2 What NGOs wanted at UN 2001

As demonstrated, this case study shows that the three main groups of actors analyzed here – NGOs, a coalition of like-minded states and norm entrepreneurs – played an important role in the process of norm building with regard to arms brokers. The next section will analyze whether their platforms (mainly outlined in Boxes 4.1 and 4.2) were assimilated in the main small-arms documents examined in the section, and whether the emerging norm on controlling illicit brokering activities reached its threshold point.

Regional and international norm diffusion This section will demonstrate how the norm dealing with curbing illicit brokering activities spread and was assimilated through the several regional and international documents examined below. To ascertain norm evolution regarding curbing illicit brokering, the case will be based on the hypothetical norm presented in the beginning of this chapter, while also taking into consideration and comparing institutional expressions of norm development in the table presented below, before mirroring the opinions of the NGOs concerned and of like-minded states. The details of this procedure, including the layout of the table, have already been outlined in Chapter 3 (see Table 3.1), and are identical here, as are the documents analyzed. 104


As mentioned at the beginning of this study, the threshold point, i.e. the point at which at least one-third of states share the same assessment of the emerging norm, is key in assessing whether the norm has become generally accepted. As can be seen in Table 4.1, some of the components of the norm are mentioned in half of the documents (six out of 12), i.e. well above the threshold set here. In addition, six out of eight of the components of the norm are included in varying degrees within the various arenas (or documents).49 This shows that there is an emerging norm and it has reached the threshold point; however, it is not as strong as the norm on weapons destruction, since some of the components of the norm were only mentioned once among all the documents. As shown in the left-hand column of Table 4.1, the hypothetical norm on controlling brokering activities has eight components. Of the ones that have more strongly diffused, the first is “States shall create, modify, or include legislation that typify illicit brokering activities,” mentioned in three documents, among them the Program of Action. This clause was advanced at Oslo – see Box 4.1. This first component of the norm was followed by “Each state shall require brokers to register their business,” which diffused throughout the Firearms Protocol and the OSCE Document. Both these clauses were advocated by likeminded states and NGOs, as indicated in both Boxes 4.1 and 4.2. The component “There shall be a clear definition of brokers and brokering activities,” which is the basis upon which all the other components should presumably build, remarkably was only assimilated in the SADC Protocol of 2001. To assess norm international institutionalization, as seen in Table 4.1, it should be noted that the 1997 Panel Report and the 1999 Group Report, which represent key documents in norm building for the small-arms issue in general, played a slightly different role in the norm building on controlling illicit brokering activities in particular. The 1999 Group Report recommended a feasibility study, i.e. in paragraph 14 of Resolution 54/54 V of 15 December 1999. Immediately after the second meeting in Oslo, the UN General Assembly requested the SecretaryGeneral (a) to carry out a study ascertaining the views of states on the feasibility of restricting the manufacture and trade of the weapons in question to the manufacturers and dealers authorized by states, which would cover brokering activities, particularly illicit activities; and (b) to submit the study as one of the background documents for the conference to be held in 2001.50 The Panel of Experts concluded that the illicit trafficking and circulation of small arms and light weapons throughout the world is not only a major source of insecurity, but also impedes socio-economic development. Illicit arms supply networks often involve legal arms purchases or transfers that are subsequently diverted to unauthorized recipients, or leakage from arms-storage facilities. Arms brokers play a key role in such networks, along with disreputable transportation and financial companies. Illicit arms trafficking can sometimes be helped by negligent or corrupt governmental officials, and by inadequate national legislation, border and customs controls. The 1999 Group Report will be further analyzed below, as part of the chronological analysis of norm development. 105

No

No

No

Each state shall require brokers to register their businesses

A license shall be required for each brokering activity with detailed identification

No

No

There shall be a clear No definition of brokers and brokering activities

No

No

No

No

No

No

No

No


No

Panel Report (1997)

Documents

States shall create, No modify or include legislation that typifies illicit brokering activities

Norm components

No

No

No

Yes

Yes

Yes

No

No

No

No

No

No

No

No

No

No

No

No

Yes No (but no criminal offense)

No

No

No

Yes2

Yes2

Yes

No

No

No

No

Yes

Yes

Group OSCE Brasilia Bamako Nairobi Firearms Program SADC Report Doc. Decl. Decl. Decl. Protocol of Action Protocol (1999)1 (2000) (2000) (2000) (2000) (2001) (2001) (2001)

Table 4.1 Tracking institutional norm development on arms brokering

No

No

No

Each state shall ensure No enforcement of breaches of the law

There shall be enhanced No regional and global cooperation for transparency and information exchange

Offenses shall be deemed No to include reciprocal extradition measures

No

No

No

No

No

No

No

No

No

No

No

No

No

Yes

No

No

No

No

No

No

No

No

Yes

No

No

No

No

No

No

No

No

No

Notes 1 The 1999 Group Report establishes that the UN should conduct a feasibility study. 2 Even though the Firearms Protocol includes these two clauses, it does so in a weakened version compared to the OSCE Document.

No

Criteria to control arms No brokering activities shall be provided in accordance with international and humanitarian law

No

Yes

No

No

No

No

No

No


As will be shown in the last part of this chapter, there is considerable international institutionalization of the norm-building process in the international setting, both prior to and after UN 2001. At the end of UN 2001, a total of 134 statements were made on the subject of brokering by, or on behalf of, 171 countries. A total of 79 countries stressed that efforts to tackle the illicit small-arms trade could not neglect the role played by brokers, and called for some form of regulation in this area. Some countries spoke of “standards,” while others advocated “strict regulation” and, in a few cases, “legally binding instruments.”51 In addition, 91 states made statements mentioning “brokers” from January 2001 up to UN 2001.52 Even though the 1997 Panel Report represents a key document in raising awareness about the problems associated with small-arms proliferation in general, generating knowledge and recommending key courses of action in the difficult pathway of norm building, it only describes the work of private arms dealers as illicit actors whose motives may include political support of subnational groups, or drug trafficking and other criminal activities conducted for profit, without advancing any normative prescription to deal with illicit brokering.53 According to this report, illicit arms brokers include certain exile groups and private arms dealers, whose motives may include political support of subnational groups, or drug trafficking and other criminal activities conducted for profit.54 The report acknowledges problems caused by illicit brokering as an issue to be dealt with by states, but it does not advance normative formation standards, although it contributed to the institutionalization of the norm, as seen at the beginning of this section. In the same year, the OAS Convention does not include specific language addressing brokering as, at that time, normative development on curbing illicit brokering activity was yet incipient. The convention indirectly refers to the activities of brokers by criminalizing the import, export, delivery, movement and transfer of weapons, ammunition, explosives, and other related material without a license. In addition, the document imposes on state parties the duty to establish illicit trafficking in arms as criminal offenses and punish “participation in, association or conspiracy to commit, attempts to commit, and aiding, abetting, facilitating, and counseling” in the commission of these offenses. The innovative normative contribution brought by the OAS Convention, along the lines of what the NGOs had advocated, is that it includes a comprehensive paragraph on “extradition,” in which it is recommended that offenses be included in current and future extradition treaties between states parties. In the absence of bilateral extradition treaties, the convention encourages states parties to consider “this Convention as the legal basis for extradition.”55 The OAS Convention spurred normative development in the international realm, as the negotiations of the Firearms Protocol were modeled in the convention. The Firearms Protocol, thanks to non-governmental pressure, included specific language on brokering. In other regional spheres, norm development on controlling illicit brokering activities was tardy, as the EU Joint Action and the EU Code of Conduct do not have any provisions on brokers. 108


Apart from furthering international institutionalization, the 1999 Group Report, as indicated above, served to reiterate the nature of the activities carried by illicit brokers and to reaffirm the need for carrying out a feasibility study on restricting the manufacture and trade of such weapons to those manufacturers and dealers authorized by states, and of establishing a database of such authorized manufacturers and dealers. The resulting study, published in May 2001 as a report, thoroughly explored the question of brokering and constituted a solid normative development in the question of illicit brokering, serving as a concrete set of normative recommendations to UN 2001.56 In paragraph 60, the report states that, at the minimum, states could require specific authorization for dealing in small arms and light weapons and require dealers to maintain records of small arms and light weapons in stock or those sold. In addition, in paragraphs 65–85, the report outlines that the legal transfer of small arms and light weapons is often facilitated by arms brokers and that their activities are an intrinsic part of the legal trade. Even though seven years had elapsed since the Rwandan genocide, there was explicit recognition of the link between illicit brokering and the circumvention of UN-imposed arms embargoes: “Furthermore, attention has recently been drawn to the role that unregulated brokering activities have played in circumventing Security Council embargoes.” The report recommends very comprehensive measures underscoring the necessity of overcoming the problem of extra-territoriality in implementing eventual brokering agreements. It asserts that, at the minimum, states should ensure effective exercise of control within the limits of their territorial jurisdiction of brokering and related activities and calls as well for a “degree” of international cooperation.57 The report further states that due to the international community’s relative inexperience with brokering regulation and many differences in national approaches, the time was not then ripe for an international legally binding instrument.58 This report interestingly addresses the dilemma involved in establishing regional and international approaches to the small-arms question in general. When regional arrangements exist, by their nature, they do not address the global character of the sources of weapons and the increasingly transnational networks of brokers, dealers and financiers. In addition, problems of state capacity have already become visible. The report points to well-known political constraints that hinder norm building and the formation of frameworks of cooperation. The lack of sufficient national experience with brokering regulation, together with the variety of national approaches to brokering control and the lack of agreed criteria, might make it difficult to achieve a legally binding agreement at the time of the review conference at the UN in 2006. In a development after UN 2001, UN General Assembly Resolution 59/86 of December 2004 requested the Secretary-General to continue his consultations and mandated the creation of a UN Group of Experts to consider “further steps in international cooperation” after the 2006 review conference on small arms. This is unsatisfactory because, as has been shown, the 1999 Group Report has already laid out the work for the multilateral process to move forward into the 109


negotiation of a treaty. As the Biting the Bullet NGOs have declared, there is a sense that within the UN, issues can only be addressed one at a time and, given the importance of the problems caused by illicit brokering, this is very worrying.59 However, the UN Secretary-General’s High Level Panel did urge the development of a legally binding agreement on brokering in the 2005 In Larger Freedom document.60 At the regional level, norm development prior to UN 2001 was disparate, and the Brasilia Declaration of November 2000 did not incorporate any specific measures addressing brokering. However, among the documents analyzed here, the OSCE Document is the most fertile ground on which norm development on brokering may develop, with clearly spelled out elements and also precise courses of action to be undertaken by states. The document frames the issue of arms brokering within the context of combating illicit trafficking in all its aspects: common export criteria and export controls.61 It states that the establishment and implementation of effective criteria governing the export of small arms will help to meet the shared objective of preventing the destabilizing accumulation and uncontrolled spread of small arms, as will national controls covering export documentation and procedures. Essentially, it aims to control the activities of international brokers, requiring registration of brokers operating within a country’s territory; licensing or authorization of brokering; and disclosure of import and export licenses or authorizations, or accompanying documents, and of the names and locations of brokers involved in the transaction.62 The OSCE Document also engages parties to share information on duly authorized manufacturers and international arms brokers and also mentions specific agencies, for example Interpol, police forces or customs agencies. These measures represent what the NGOs wanted at UN 2001 (see Box 4.2). With the OSCE Document, five years since the genocide in Rwanda, an international document clearly spells out the emerging norm on brokers and also precise courses of normative development and practices on controlling illicit brokering. This leads to the acceptance of the first hypotheses guiding this study, i.e. that the influence and role of non-state actors is stronger than other actors in advancing norm building. In the same year, 2000, at the regional level, the Bamako Declaration falls short of actually proposing ground-breaking normative developments on curbing illicit brokering. It only instructs states to take appropriate measures to control arms transfers by manufacturers, suppliers, traders, brokers, and shipping and transit agents in a transparent fashion. At the regional level, the Bamako Declaration encourages states to codify and harmonize legislation governing the manufacture, trading, brokering, possession and use of small arms and ammunition. The declaration also calls on states to ensure that the manufacturers and suppliers of illicit small arms and light weapons who violate global or continental regulations on the issue are sanctioned. The only aspect that is close to a normative innovation introduced by the Bamako Declaration is the appeal to the international community and, particularly, to arms-supplier countries to accept that trade in small arms should be limited to governments and authorized registered 110


licensed traders, and to consider ways to eliminate the practice of dumping excess weapons in African countries and exporting arms in violation of arms embargoes.63 However, the document neglects to set up measures to acknowledge the problem of unrestricted small-arms spread within African nations and deal with the excess of weapons in these countries as an internal problem as well. Even though the genocide in Rwanda was the African event spurring all the international action on controlling illicit brokering, the Bamako Declaration fails to explicitly link norm development on brokering with its humanitarian aspect. In the same year, the Nairobi Declaration “Urges source countries to ensure that all manufacturers, traders, brokers, financiers, and transporters of small arms and light weapons are regulated through licensing.” This weak declaratory statement did however lay the ground for the Nairobi Protocol in 2004, which substantially incorporates the issue of brokering in its legally binding provisions. Among these, paragraph 11 calls state parties to enact a national system for regulating dealers and brokers of small arms and light weapons that includes licensing, registering all brokers operating within their territory, authorization for each individual transaction taking place, full disclosure on import and export licenses or authorization, and accompanying documents giving the names and locations of all brokers involved in the transaction. Norm building approaching UN 2001 in July 2001 found a lukewarm development within the final negotiation of the Firearms Protocol in Vienna. Nongovernmental groups also took the desire for humanitarian language to be embedded in norm development on brokering to the negotiations in Vienna, as they did in the negotiations leading up to the Program of Action.64 The outcomes were similar in both documents: a much weaker set of norms than were initially advocated. The beginning of the negotiations of the Firearms Protocol, in April 1996, was a first step in the direction of uniting the international community to agree on certain international legally binding norms related to commercially traded small arms and brokering. During the negotiation of the Firearms Protocol, the more progressive provisions of the draft text submitted by the United States were watered down by states that did not want to engage in any onerous transactions at the time. Finally, the negotiation of the protocol was concluded with a weak provision encouraging states to come up with a system to regulate brokering activities that must include one or more measures such as: (a) requiring registration of brokers operating within their territory; and (b) requiring disclosure on import and export licenses or authorizations, or accompanying documents, of the names and locations of brokers involved in the transaction.65 In addition, the same article prescribes states to include information on brokers and brokering in their exchanges of information and to retain records regarding brokers and brokering. What is more, the paragraph on cooperation (article 13) calls states to seek the support and cooperation of manufacturers, dealers, importers, exporters, brokers and commercial carriers of firearms, their parts, components and ammunition to prevent and detect illicit activities. 111


During the negotiations on the UN 2001 draft Program of Action, the EU, Japanese and Norwegian delegations strongly bargained for a legally binding instrument on brokering. Switzerland welcomed the inclusion of language reflecting a political commitment to elaborate an international legally binding instrument on brokering and the EU called for the negotiation of a legally binding international agreement on brokers. Australia and the Philippines also endorsed this call, but with ambiguous language proposing the elaboration of an international instrument on the brokering of small arms and light weapons. The American delegation proposed the establishment of model regulations.66 Canada also had an articulate role in proposing a more evolved set of norms to control illicit brokering activities, proposing the establishment of international mechanisms, in particular trans-border customs cooperation and networks for information sharing among export/import and brokering regulators, law enforcement, border and customs control agencies. Most prominently, Canada unambiguously articulated for the criminalization of all illicit brokering activities.67 This type of wording was systematically weakened in the final version by Cuba and especially China with the substitution of the word “criminalization” for “penalties” where appropriate, without prejudice to national security and commercial concerns.68 The “unequivocal acknowledgement that unregulated arms brokering and shipping is a problem that needs to be addressed by all states,” as indicated in Box 4.2, was not mirrored in the Program of Action. In the final version, the call for a legally binding agreement on arms brokering was weakened to provision 37, part II: “To develop common understandings of the basic issues and the scope of the problems related to illicit arms brokering with a view to regulating the activities of those engaged in arms brokering.” In part II:3, the Program of Action prescribes the adoption and implementation of the necessary legislative or other measures to establish as criminal offences under countries’ domestic laws the illegal manufacture, possession, stockpiling and trade of small arms and light weapons within their areas of jurisdiction, in order to ensure that those engaged in such activities can be prosecuted under appropriate national penal codes. The Program of Action also outlines vague policies on brokering such as, at the national level, the development of adequate national legislation or administrative procedures regulating the activities of those who engage in small-arms and light-weapons brokering. This proposed legislation included measures such as the registration of brokers, the licensing or authorization of brokering transactions and appropriate penalties for all illicit brokering activities performed within the state’s jurisdiction and control. This indicates that the extra-territorial clause suggested by some non-governmental groups was not included. At the global level, the clause on a legally binding treaty articulated by the Norwegians and the EU, and advocated by non-governmental groups, was watered down to the following: “To develop common understandings of the basic issues and the scope of the problems related to illicit brokering in small arms and light 112


weapons with a view to preventing, combating and eradicating the activities of those engaged in such brokering.” The normative development offered by the Program of Action barely represented what the non-governmental groups or the like-minded states advocated for (see Boxes 4.1 and 4.2). This section has demonstrated that even though the emerging norm on brokering has achieved considerable international institutionalization and has reached the threshold point of norm building established in the methodology used here, it has not been fully assimilated either in state practice or in institutional normative development. These deficiencies can be attributed to the intricacy and complexity of this phenomenon and also to its relative novelty, as discussed previously. Subsequent sections will outline how this seemingly unfinished norm-building process nevertheless shows promising signs of becoming a more concrete and concerted effort in the near future.

Main mechanisms of norm diffusion The international community realized, mainly through studies and advocacy put forward by NGOs such as Amnesty International and Human Rights Watch, the extent to which the UN arms embargo had been violated, so enabling the genocide in Rwanda. Norm building on controlling illicit brokering activities was preceded by the generation of knowledge in various policy arenas. This was accompanied by a great deal of advocacy work, mainly undertaken by Amnesty International. This was instrumental in enabling an articulate process of persuasion between non-state actors and state actors, as well as an active process of hard advocacy between the NGO advocates and some governmental officials who were advocating for norm setting on curbing illicit arms brokering at the international level. The realization of the existence and devastating humanitarian impact of illicit arms brokers was a very important component in making the international community realize how important it was to initiate action regarding small-arms proliferation in general. Despite the importance of the issue of illicit arms brokering, it is evident that it received less attention than expected in the outcome of UN 2001. Advocacy groups on the issue, as well as some governments, were not expecting a commitment to a legally binding instrument, due to the lack of technical knowledge on brokering activities at the time, as well as the diffident position of countries like China. South Africa was another country that shied away from its initially more progressive position. South Africa had just negotiated the SADC Protocol and therefore was at that point more prepared to cling to its regional legal framework, instead of acceding to an international commitment.69 Therefore, there was no real hope that states were prepared to make commitments to a legally binding obligation by 2001. When there was a recognition that illicit brokering activities were causing widespread human suffering, and the issue started assuming importance, there was a process of coalition building between non-governmental actors and one 113


Table 4.2 Mechanisms and actors for norm diffusion on brokers Mechanisms Hard advocacy

Learning/Socialization

Coalition-building

Main non-governmental actors Amnesty International

Human Rights Watch

Fund for Peace

Leading norm entrepreneurs (early) Brian Wood, Loretta Bondi Main governments involved Norway, leading a coalition of like-minded states Most evolved norms OSCE Document

particular government, as demonstrated. This partnership between NGOs and the Norwegian government was instrumental in catalyzing the dissemination of authoritative information to a wider audience of interested “like-minded states.” Within the UN, there were two tracks of norm development. The first was the process leading up to UN 2001. Within this track, there was a sluggish normdevelopment process, as can be seen in the analysis of the Program of Action above, which indicate that governments were not yet prepared to commit to negotiate a legally binding treaty on brokers after the conference. In addition, it can be seen how a small group of governments (China and Cuba, for instance) managed to weaken the acceptance of the inclusion of stronger norms. It can also be noted that African countries (in the region where the issue was launched and a large stakeholder, as it is this continent that is the site of most of the atrocities originating from the work of brokers) did not really play an active role in the bargaining process for the crafting of the Program of Action. The UN also constituted an important forum for the progressive development of knowledge and norm setting on the issue through the 1997 Panel Report and the 1999 Group Report. Nonetheless, this was not coupled with active policy development either in the Program of Action or in the Vienna process. This means that NGOs did not manage to influence the broader community of states to go a step further in only “acknowledging” the severity of the matter. This case study accepts the first hypothesis guiding this study (see Chapter 1), where the influence and role of non-state actors in advancing norm building is stronger than other actors. This was especially true for raising awareness about the humanitarian implications of illicit arms brokering and in advancing the perception of the need for normative change. This seems less evident for the second hypothesis, i.e. that the influence and role of a coalition of like-minded states in advancing norm building on small arms is stronger than other actors. The role played by the like-minded states in advancing normative change was done through sponsorship of the production of knowledge, especially in the case of Norway. Therefore, the role of such states is more indirect. The second hypothesis can be accepted in the section of this study on knowledge preceding norm 114


building. The study also accepts the third hypothesis, i.e. that the influence and role of norm entrepreneurs in advancing norm building on small arms is stronger than other actors. Norm entrepreneurs like Wood and Bondi were key in advancing and advocating norm building on controlling illicit arms brokering. Their work, together with that of powerful advocacy NGOs, especially Human Rights Watch and Amnesty International, was central in putting illicit brokering in the spotlight of international attention and action.

Norm emergence since 2001 In the process of deepening norm building since 2001, the governments of Norway and the Netherlands have been working on the Dutch–Norwegian initiative for the control of illicit brokering activities since 2003. The two governments sponsored a very important meeting in Oslo in April 2003 that strengthened the like-minded coalition of interested states, and have since sponsored a number of regional meetings that have kept the debate on a separate track to the UN system.70 Furthering normative development after UN 2001, the SADC Protocol advances a complete definition of “brokers.”71 However, it falls short of fully articulating the components of the norm on curbing illicit brokering activities, except for encouraging the enactment of legislation containing “provisions that regulate firearm brokering in the territories of State Parties.” Indicative of a potential future consolidation of the development of the international norm on brokers is the fact that, in June 2003, the EU Council adopted A Common Position on the Control of Arms Brokering.72 According to this legally binding document, a license or written authorization should be obtained for brokering activities from the authorities of the states where activities take place, and, where required by national legislation, where the broker is resident or established. Member states will assess applications for a license or written authorization for specific brokering transactions against the provisions of the EU Code of Conduct. Member states may also establish a register of arms brokers and require brokers to obtain written authorization to act as such. Registration or authorization to act as a broker would not replace the requirement to obtain the necessary license or written authorization for each transaction. Moreover, on 19 June 2003, the European Parliament adopted the Resolution on Implementation of the UN 2001 Program of Action, calling upon EU member states to reaffirm their commitment to international instruments on marking/tracing and brokering of such weapons and to declare their support for such instruments being legally binding. In November 2003, the Inter-American Drug Abuse Commission (CICAD) of the OAS approved the Model Regulations for the Control of Brokers of Firearms, their Parts and Components and Ammunition.73 Even though the regulations are only politically binding, they establish detailed policies that states are called on to adopt. These include, among others, definition of brokers and 115


brokering, competent national authorities for the control of brokering activities, registration systems, licensing, definition of offences and related penalties, and liability of legal entities.74 In December 2003, members of the Wassenaar Arrangement agreed on adopting the Elements for Effective Legislation on Brokering to strictly control the activities of those who engage in the brokering of conventional arms by introducing and implementing adequate laws and regulations. In order to ensure a common policy on arms brokering, the agreement requested each participating state to include, consistent with its national legislation and practices, a set of measures in its national legislation on arms brokering.75 Finally, in December 2004, the OSCE approved the OSCE Principles on the Control of Brokering in Small Arms and Light Weapons building upon the OSCE Document by reinforcing its principles on brokering and aiming to strengthen their implementation.76 All these developments indicate further strengthening of the emerging norm on controlling the illicit activities of arms brokers at the international level and deepening of its manifestations at various regional levels, namely in the OSCE area, the Americas and Africa. In other regions, the question of illicit brokering is either misunderstood or not considered problematic, notably in the Middle East (only Israel has relevant controls), Asia and the Pacific islands.77 These lacunas may represent an obstacle to the creation of a robust international norm enshrined in one international document. Nevertheless, observers point to the strong trend toward the multilateral negotiation of an international instrument on brokering after 2006.78

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5 MARKING, TRACING AND RECORD-KEEPING

Introduction This case study will examine the emerging norm on weapons marking and tracing, and analyze how it diffused amongst non-state and state actors throughout the 1990s until 2001.1 International awareness regarding the need to create an international norm framework to enhance common understandings on marking and traceability of small arms and light weapons developed rapidly in the late 1990s, and this is the strongest international emerging norm on small arms. Of the 103 states that reported on small-arms activities in 2003 to UNDDA, 78 percent addressed marking and tracing substantively.2 Also of note is that, differently from the other cases seen here, this norm-making case is more robust at the international level than in regional contexts: it is the only case where there is an international instrument specifically addressing it. As in the other case studies, the principal investigation of norm building undertaken here goes until 2001, because UN 2001 was a watershed in the development of norms on small arms. After 2001, it took four years of multilateral negotiations within the UN for an international instrument addressing marking and tracing to come to be established. The UN General Assembly adopted the politically binding International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons on October 2005.3 Prior to this, there were no harmonized regional or international systems in place addressing marking, tracing and record-keeping.4 The lack of an international regime in these areas rendered the work of authorities worldwide to control arms illicit trafficking even more daunting. The newly adopted international instrument will ideally help to harmonize procedures on marking and tracing, but should especially enhance international and regional cooperation on these matters. Change in state practice is particularly telling of how strongly this new norm is emerging in the international debate on small arms: •

50 states require that all small arms and light weapons are marked as an integral part of their manufacture; 117


• •

•

47 states have measures to tackle unmarked or inadequately marked weapons, particularly by marking or destroying them; at least 79 states keep detailed records on holdings and transfers of small arms, though many of these are not maintained in line with emerging international standards; and 42 states actively cooperate in tracing, but mainly only in relation to “ordinary” police investigations.5

This is a relatively straightforward case of international norm building prior to UN 2001, in comparison to the other cases examined in this study (even though, after that, given that it was negotiated within the UN, it took four years more for an international instrument to be negotiated). Its straightforwardness can be attributed to the fact that significant progress has been made toward developing international consensus on basic principles in the advancement of measures and in international norm-development processes in this area in general, especially prior to the UN 2001. In addition, there is considerable knowledge within state practice upon which a potential international norm may build, as weapons marking is not a new practice. As seen in other case studies, if there is previously existing knowledge, this often speeds the norm-building process. Likewise, there is also considerable international practice of tracing arms supply lines within Interpol. Four main groups of actors have been identified as central to the norm-building process: two like-minded states, a small pool of NGOs, the firearms community (comprising sports shooting associations and firearms manufacturers), and the Eminent Persons Group (EPG), supposedly a group of norm entrepreneurs. This chapter therefore discusses the search for the emergence of a norm on weapons marking, whereby states must ensure that manufacturers apply appropriate and reliable markings on small arms and light weapons as an integral part of the production process. These markings should identify the country of manufacture and also provide information that enables the national authorities of that country to identify the manufacturer and serial number, so that the authorities concerned can trace each weapon and cooperate in efforts to combat global and international illicit arms trade and undesirable diversions of arms shipments. The components of the norm described here appear in Table 5.1.6

Marking weapons: from practice to emerging international norm – how did norm building occur? This study has identified four groups of norm builders on weapons marking and tracing. The first comprises state actors, namely like-minded states, which used their powers of persuasion and financial resources to set forth a proposal for the contours of an international regime on marking and tracing. This group was important for norm building in the area under discussion, as its members undertook the role of raising awareness and contributing to the spread of information 118

MARKING, TRACING AND RECORD-KEEPING

among, and socializing with, other states. As indicated, the successful negotiation of the contours of such a regime was recently accomplished within the UN. The second group of actors is composed of NGOs who were instrumental in producing knowledge – a prerequisite for norm building – by engaging in an active process of teaching and generation of expertise. The third and fourth groups of actors, the firearms community and the EPG, have a less clear role in the international norm-building process. Although the firearms community’s role in norm building seems to be more in tune with the first two groups (at least until 2001), this is less clear of the EPG. This will be analyzed in detail below. Like-minded states and their role in norm building Switzerland and France spearheaded the most important policy initiatives contributing to the advancement of norm building on weapons marking in 2000. In its preamble, the Franco-Swiss initiative document stated that the unchecked availability and proliferation of small arms contributes to human suffering, reduces prospects for sustainable development and fosters a culture of violence.7 The initiative aimed at strengthening the ability of states to take effective action to prevent small-arms and light-weapons flows that contribute to the excessive and destabilizing accumulation and spread of these weapons, particularly in regions of conflict and tension. This was to be done by establishing a cooperation mechanism and taking preventative measures, including marking and record-keeping, to enable states to identify and trace lines of supply of these weapons of concern. The Franco-Swiss initiative aimed to go beyond the law-enforcement nature of the Firearms Protocol, which was designed to fight specific organized criminal activities. Nonetheless, the initiative included the preventative measures outlined in articles 7 and 8 of the Firearms Protocol on marking and record-keeping, respectively. It extended these articles, however, to include the establishment of a tracing mechanism that would not only investigate the transnational nature of organized criminal activities (with which article 4, paragraph 1 of the Firearms Protocol deals), but also strengthens the capacity of states to identify small-arms lines of supply. When the initiative was issued, it underscored the wide recognition that international efforts to prevent and combat the destabilizing accumulation of small arms can be strengthened by improving the traceability of small-arms flows. Therefore, the development of a norm on marking, tracing and record-keeping was seen as pivotal to the broader efforts to stem the illicit trade in small arms. The Franco-Swiss initiative’s key element at the international and national levels was cooperation to trace the lines of arms supply that are conducive to destabilization, especially in regions of conflict and tension. This cooperation entailed the accurate and confidential exchange of information among states regarding weapons transit and suspicious caches. Countries were expected to work in close cooperation with the UN to uncover lines of supply that are likely to violate UN embargoes, or are likely to disrupt UN peace-keeping operations. 119


At the national level, the initiative recommended that states should establish the appropriate regulatory framework to guarantee that weapons are uniquely marked during manufacture. It also recommended that states either mark currently unmarked weapons or destroy them. States were supposed to undertake their record-keeping and marking systems in a way that allowed the identification and verification of the manufacturer and the import authorizations. The Franco-Swiss initiative provided that states should devise an international consultative or advisory body to advise them on the technical aspects of the matter, such as the evaluation of small-arms destruction processes. The advisory body was also required to provide assistance on the establishment of minimum standards relating to the tracing regime. In this regard, states were to promote consultations with industry, research institutes and experts both at the national and international levels. The initiative suggested that an international system for controlling smallarms flows required three key elements: the marking of small arms and light weapons; the registration of production, stocks and transfers of small arms; and the traceability of small arms. Due to opposition mainly from the United States, Egypt and Iran, despite overwhelming international support for a legally binding treaty, the final result was the adoption of a politically binding instrument.8 The Franco-Swiss initiative was launched parallel to the NGO efforts prior to UN 2001. In the words of a senior French government official at the time, it was launched: with a view to this conference and beyond, that is with a view to the follow-up mechanism which we will adopt, our country has together with Switzerland undertaken to pursue efforts to promote the idea of an instrument making possible traceability of small arms and light weapons. We believe that this instrument is needed both to meet the obvious need to eradicate the accumulation of these arms and to meet the commitment we have made with respect to organized crime.9 In his words, the initiative stressed the importance France gives to strengthening controls over the licit and illicit flows of light arms by marking such arms at the time of manufacture. That is the objective of the French–Swiss initiative to fashion a legally binding instrument on the traceability of small arms and light weapons, relying on instruments for prevention and cooperation by means of the marking, traceability and registration of such weapons.10 Furthermore: France and Switzerland are convinced of the need for an international mechanism to enable effective cooperation in tracing sources and flows of these weapons of concern. The common initiative aims at contribut120


ing to the process of developing such an international instrument, which would form a key element of the programme of action to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects, to be established at the July Conference.11 Key NGOs on marking and tracing research were invited to participate in the series of meetings that were held regarding this initiative mainly for governments, and with the participation of the firearms community.12 The role of non-state actors in norm building There were few NGOs working on marking, tracing and record-keeping. The Group for Research and Information on Peace and Security (GRIP) in Belgium was among those involved and was the group pioneering non-governmental research and action in this field. Their first step was to persuade the Belgian government to finance a study on the issue.13 GRIP was invited to participate in the process of meetings that came out of the Franco-Swiss initiative. The chief divergent point was for how long the data and registers on the production of guns should be retained. GRIP advocated that the data should be kept indefinitely. GRIP also proposed from the outset that industries adopt a system of double marking and tried to persuade them that this system would not necessarily increase the cost of production. During the meetings of the Preparatory Committees leading up to UN 2001, GRIP circulated brief reports intended to raise awareness and influence the position of the states regarding the necessity of marking. GRIP was involved in three of the central projects in the area of marking; of which one was commissioned by the Small Arms Survey and UNIDIR, and financed by the Swiss and French governments. This covered surveying and examining, which were measures that were already in place; e.g. the clauses on marking in the OSCE Document, the OAS Convention and the Firearms Protocol. The second project was on the monitoring of the follow-up to the Program of Action. The aim was to publish three reports on the evolution of the positions of states regarding the issue of marking. The third project was the actual drafting of an international convention on marking. This was GRIP’s initiative and it was widely supported by several NGOs.14 Another non-governmental actor with an important role in the norm-building processes on marking, tracing and record-keeping was the Biting the Bullet Project, albeit not as intensively as GRIP. The Biting the Bullet Project grouped together three important NGOs at the time: BASIC, International Alert and Saferworld.15 These three NGOs were among the most important nongovernmental actors in global efforts to advance norms on small arms (at least in the early stages of the debate on small arms in the period 1995–2000). They fundamentally contributed to systematically raising awareness and to the advancement of policies regarding the problems associated with small-arms 121


availability, through a series of “briefings” and also through the organization of meetings between governments and the civil society. Throughout its work, the Biting the Bullet Project sought to influence policymakers and officials by holding meetings and seminars in preparation for UN 2001. In the months immediately preceding the conference, the Biting the Bullet Project held two inter-sessional meetings. In conjunction with the Canadian Ministry of Foreign Affairs, the Arias Foundation and Project Ploughshares, a meeting was held in Ottawa with governments from the Americas and Caribbean regions on the OAS Convention and the UN 2001 process. This was followed by a meeting held in Switzerland with the Geneva Forum, bringing together over 40 governments to discuss the text of the draft Program of Action just prior to UN 2001. In addition to this, during the UN Preparatory Committee meetings and the conference itself, Biting the Bullet hosted seminars and met with delegates working to influence language in the Program of Action.16 Like the Franco-Swiss initiative discussed earlier, the Biting the Bullet Project called for the creation of an international system to ensure the capacity to trace small arms, underpinned by three principles: marking, record-keeping and tracing. This regime, it was suggested, should be based on two pillars: the Firearms Protocol, which was linked to the guns fueling transnational organized crime, and the other through the UN 2001 process, which is ongoing. Moreover, Biting the Bullet advocated for the need to launch, as part of the follow-up to UN 2001, a negotiation process to establish a legally binding international agreement on tracing small arms. Biting the Bullet recommended that the international community should develop the capacity of relevant authorities to identify the source of arms trafficking in a speedy and dependable fashion.17 The recommendation presented by Biting the Bullet underscored that the basic components of the norm on marking and record-keeping needed to be included in UN 2001 were essentially those in the 1999 Group Report. Authors of Biting the Bullet Project publications confirm that there was “an overriding consensus” on the need to mark firearms at the point of manufacture, a point with which the firearms community agreed.18 However, with regard to marking at the point of importation, there seemed to be some questioning of this policy by some states. They questioned not only the practicality and costs of this measure, but also who would be responsible for applying the mark: the importer, the exporter or governments. Biting the Bullet pointed to the importance of marking at the time of importation because it would facilitate the investigations of law-enforcement officials trying to find out when legally imported or produced weapons were diverted to the illicit market. Furthermore, import marks would be useful to identify second-hand firearms that were not marked during manufacture. The firearms community was also supportive of import marks. The recommendations that the Biting the Bullet group put forward for states to agree to before UN 2001 regarding tracing were as follows. States should: •

require at manufacture the marking of small arms and light weapons to identify the manufacturer, place of manufacture and serial number; 122


• • • •

•

institute adequate record-keeping; prevent the manufacture or transfer of unmarked or inadequately marked small arms and light weapons; mark or destroy all unmarked or inadequately marked weapons that have been collected, confiscated or seized; mark weapons held or stored by national armed forces or other national agencies (as a transitional arrangement, existing stockpiles of unmarked arms held in reserve in secure storage facilities may remain in place, but such weapons must be appropriately marked at the time they are moved or transferred to civilian use); and reinforce cooperation with other states and with relevant intergovernmental organizations in the tracing of illicit or suspect small arms and light weapons, ammunition and other materials.19 The firearms community and norm building

The World Forum on the Future of Sport Shooting Activities (WFSA) presented its Report on Firearms Manufacturing Community Recommendations Regarding Firearms Marking Issues to the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime meeting in Vienna on 17–18 January 2000.20 The report’s recommendations were consistent with what the actors previously outlined had advanced: all firearms should be marked at the time of manufacture with unique identifying information consisting of the name of the manufacturer, the place of manufacture and a serial number; and each jurisdiction should adopt effective means of tracing imported firearms, which can be based on national legislation or regional agreements. The WFSA report also recommended that the UN, with the assistance of the firearms-manufacturing community, might wish to develop model regulations or standards on the adequacy of firearms-marking techniques and procedures. According to this recommendation, model regulations or standards should cover at least six areas: the physical means of applying markings to the firearms; procedures to avoid duplicate markings and production of firearms without markings; procedures and requirements for the keeping of records of what markings were applied to which firearms, with particular emphasis on the length of time records should be kept; procedures for responding to tracing requests from the law-enforcement agencies; and the adoption of new technologies. In a subsequent document, the WFSA further detailed the components of a potential international norm as follows:21 • • •

Standards for Firearms Marking: each manufacturer shall mark the firearm as the mark may be recoverable; Duplicate Markings: each manufacturer shall establish control procedures to avoid duplications or identical marks; Records Retention: each manufacturer shall establish procedures to keep the marking records for ten years; 123


• •

Tracing Requests: each manufacturer shall establish procedures for a rapid and accurate exchange of information; and New Technologies and Information Sharing: periodically evaluate new firearms technologies, communicate the model standards on firearms marking to relevant governmental bodies and members of the firearms industry.

At that stage, the firearms community was of the belief that there was a baseline recommendation that seemed to reflect an emerging international consensus: “all firearms should be marked at the time of manufacture with unique identifying information consisting of the name of the manufacturer, the place of manufacture and a serial number.”22 This was expressed at a workshop held in Brescia, Italy, in September–October 1999. Regarding the recommendations drawn up by the workshop, duplicate markings, for instance, were considered essential to any effective system of model standards for marking. There was an extensive discussion on retention of records, in which many manufacturers were of the view that the best practice should be to retain the records indefinitely. The draft report concluded that the firearms and manufacturing communities were committed to assisting in the eradication of illicit manufacturing of and trafficking in firearms. Legitimate firearms manufacturers engaged in legitimate enterprises were only put in peril by such activities. After UN 2001, the WFSA continued to play an active role, especially on contributions to the debate on marking and tracing.23 By 2005, its position had evolved to one of not supporting a legally binding international instrument on marking and tracing and basically reflected the pro-gun position of “do not take the guns away from law-abiding citizens.”24 An interesting development, though, was the adoption by the WFSA Manufacturers Advisory Group of a Firearms Industry Marking Standards document on 14 March 2003.25 Whether this will assist or impede the implementation of the international document on marking and tracing is yet to be seen.

The eminent persons group: contributing to or obstructing normative development? The EPG was an independent commission of international personalities created to support UN Secretary-General Kofi Annan’s vision of a global small-arms non-proliferation regime and to pursue active diplomatic measures aimed at the implementation of the Program of Action. Salim Ahmed Salim, co-chair of the EPG, stated: Success in eradicating illicit proliferation of small arms presupposes a coalition of governments, and civil society, including NGOs and manufacturers. As EPG, we are actively engaged in the “Paris Process” with manufacturers, governments, and NGOs on voluntary measures on small arms marking, tracing, and norms for transfer.26 124


Salim called for a new emphasis on tracing through marking and information exchange: Towards that end, voluntary efforts by the small arms industry will make an important contribution. . . . I believe the EPG’s dialogue with manufacturers, governments, and NGOs as well as the SecretaryGeneral’s own efforts can mutually enhance each other and sit well with the UN Program of Action, the OAU Bamako Declaration, and the OSCE Document. I am greatly encouraged by the fact that on industry self-regulation the EPG is supported and encouraged by the Governments of the People’s Republic of China, the Russian Federation, the United Kingdom and the United States.27 Arguably, the EPG was convened as an instrument to help advance the Secretary-General’s efforts on countering small-arms proliferation.28 As member states’ positions diverged on the scope and mandate for UN 2001, it was felt that an independent commission of international personalities could lend momentum to the preparatory process by galvanizing political will in capitals in support of goal-oriented action. However, a representative of an NGO has expressed the views that “the Paris Process will undermine some of the goals and principles of the International Action Network of Small Arms (IANSA). And we know that the leader of the process has shown outright antagonism to some IANSA goals”; while prominent NGOs within IANSA declined Count Albi’s offer to be part of the Advisory Board on the grounds that its activities would be incompatible with the advocacy and promotion of binding agreements on the strengthening of domestic control on weapons.29 The Paris Process states and manufacturers called on industries to actively pursue marking and tracing as well as norms for transfer integral to a voluntary self-regulation system.30 The EPG stated that this system would provide an initial solution for states: to deflect the need to resolve details on a number of outstanding issues, voluntary measures could, in the short term, prove important building blocks for the Secretary-General’s vision of a global small arms nonproliferation regime. In building on national legislation, voluntary industry measures are viewed as complementary to international action on issues, where consensus may prove attainable in the future.31 This view was apparently not shared by the NGOs, despite inclusive claims by the EPG. The Paris Process required that manufacturers apply standards for marking and tracing among themselves. However, as stated above by the WFSA, it seemed that the manufacturing community had more advanced positions within the international norm-building process than the EPG. At that stage, before UN 2001, it was difficult to position the clear objectives of the EPG 125


within the efforts and initiatives of the other actors involved with the advancement of an international norm on marking, tracing and record-keeping. Empirical evidence of the desire of the Secretary-General of the UN to have the EPG act on his behalf to advance the potential international norm could not be found. What is more, no evidence could be found that other actors acquiesced to the idea of self-regulation. The EPG did not particularly contribute to norm building on marking, as it did not advance any particular set of proposals as the abovementioned groups of actors did.

Tracking international and regional norm building This section will demonstrate how the emerging international norm on weapons marking and tracing diffused through the several regional documents given in the table below, based on the hypothetical norm presented at the beginning of this chapter. The procedure is the same as in earlier case studies, as can be seen in Table 5.1. As can be seen in Table 5.1, the hypothetical norm on marking and tracing has eight components, as shown in the left-hand column of the table. The most important component of the norm, i.e. a “system to ensure adequate marking of small arms,” is mentioned in the majority of the documents (eight out of 12), and more than half the documents (surpassing the threshold of being mentioned in one-third of the documents) include at least half of the components of the norm.32 This shows a notable acceptance of the emerging norm on weapons marking and tracing and proves that this norm has reached the threshold point. Confirming the robustness of the norm diffusion process, in July 2001, a total of 134 statements were made on the subject by, or on behalf of, 171 countries. On marking and tracing, 95 states advocated marking weapons in order to determine the origin of, and transfer routes taken by, small arms, thus preventing their diversion from legal to illicit markets. Specific approaches differed widely, however, with some states emphasizing that regulations for marking were a national responsibility, others favoring “agreed minimum standards,” and a third group advocating the negotiation of legally binding international instruments.33 In addition, in the lead-up to UN 2001, there were 110 statements made in the General Assembly and other forums around the world on marking, tracing and record-keeping.34 To assess norm international institutionalization, as seen in Table 5.1, the 1997 Panel Report and the 1999 Group Report contain some of the elements of the norm, especially the 1999 Group Report, which includes four components of the norm, whereas the 1997 Panel Report contains one element only. This means that, by 1999, the norm on weapons marking was institutionalized in the international agenda, but not to the same extent as, for instance, the norm on brokers or on weapons destruction. This suggests that the emerging international norm on marking and tracing really started taking root and diffusing after 2000, 126


as seen in the preceding sections of this study, with the French–Swiss initiative in particular being an important impulse for international norm development. The 1997 Panel Report initiates norm development on marking and tracing with a modest recommendation for the feasibility of establishing a reliable system for the marking of all relevant weapons from the time of their manufacture. In the same year, the OAS Convention substantively advanced normative development by legally binding state parties to consider “illicit manufacturing” as the manufacture or assembly of non-marked firearms, ammunition, explosives and other related materials.35 In addition, states parties shall require, at the time of manufacture, appropriate markings of the name of manufacturer, place of manufacture and serial number. This provision reflects what the NGOs working on marking in particular, and the like-minded states, had advocated for. In addition, the convention moves ahead on requiring appropriate markings on imported firearms permitting the identification of the importer’s name and address; and requiring markings on any confiscated firearms.36 Congruently with what most actors had wanted, the convention binds states parties to cooperate in the tracing of firearms, ammunition, explosives and other related materials that may have been illicitly manufactured or trafficked. The following year, 1998, did not observe the same normative development in other regional realms, specifically in Africa and Europe, as neither the EU Code of Conduct nor the EU Joint Action included any provisions for norms development. Nonetheless, with the publication of the 1999 Group Report, renewed normative progress can be observed. This report underscores that there was at the time an expanding body of knowledge and experience on marking small arms and light weapons in effective and reliable ways that reduced the possibilities for criminals and arms traffickers to remove identification markings. The report recommends that the UN should initiate a study on the feasibility of establishing reliable and cost-effective ways of marking all such weapons.37 At that time, the Governments of Switzerland and Canada had commissioned studies on this question. As the 1999 Group Report states: The feasibility of ways of reliably marking small arms as an integral part of the production process received detailed attention at the workshop hosted for the Group of Experts by the Government of Switzerland in February 1999, and the Group received expert briefings on the issue. Moreover, the marking of weapons at the point of manufacture is already a requirement of many States and of the OAS Convention, and is being addressed in the negotiations on a draft firearms protocol . . .38 The 1999 Group Report consolidates the norm of manufacturers applying appropriate and reliable markings on small arms and light weapons as an integral part of the production process, identifying the country of manufacture and also providing information that enables the national authorities of that country to identify the manufacturer and serial number. From this, the authorities 127

Yes

Yes

International No arrangements to enable timely and reliable tracing of lines of supply

At manufacture, mark small arms identifying serial number and place of manufacture

No

Yes

Adequate record-keeping No on arms transfers, production, import and export

No

No

No

No

No

No

No

No


Yes

Panel Report (1997)

Documents

Yes

System to ensure adequate marking of small arms

Norm components

Yes

Yes

No

Yes

Group Report (1999)

Yes

Yes

Yes

Yes

No

No

No

No

No

No

No

Yes

No

No

No

No

Yes

No

No

Yes

Yes

Yes

No

Yes

Yes

No

Yes

Yes


Table 5.1 Tracking institutional norm development on marking and tracing

Yes

No

No

Mark or destroy all No unmarked or inadequately marked weapons that have been collected, confiscated or seized

Mark weapons held or No stored by national armed forces or other agencies

Reinforce cooperation with other states and with relevant intergovernmental organizations

No

Yes

Prevent the manufacture No or transfer of unmarked or inadequately marked small arms

No

No

No

No

No

No

No

No

Yes

No

No

No

Yes

No

Yes

Yes

No

No

No

No

No

No

No

No

No

No

No

No

Yes

No

Yes

Yes

Yes

No

No

Yes

No

No

No

No


concerned can trace each weapon and cooperate in efforts to combat illicit arms trafficking and undesirable diversions of arms shipments. The OSCE Document of 2000 solidified normative development by addressing virtually all normative elements that the actors discussed above had prescribed. The document outlines that combating illicit trafficking in all its aspects constitutes a major element of any action needed to deal with the problem of the destabilizing accumulation and uncontrolled spread of small arms. National control of manufacture is essential to the combating of illicit trafficking. In addition, the proper marking of small arms, coupled with accurate, sustained recordkeeping and exchanges of information outlined within this document help relevant investigative authorities to trace illicit small arms and, if a legal transfer has been diverted into the illegal market, to identify the point at which the diversion took place.39 The document dedicates an entire section to setting out principles and measures covering the manufacture, marking and record-keeping of small arms.40 This section of the OSCE Document states that participating states agree to ensure that all small arms manufactured on their territory after 30 June 2001 are marked in such a way as to enable individual small arms to be traced. The marking should contain information allowing the investigating authorities to determine, at a minimum, the year and country of manufacture, the manufacturer and the weapon’s serial number. In addition, the document robustly develops the norm and prescribes that participating states agree that, should any unmarked small arms be discovered in the course of the routine management of their current stockpiles, they will destroy them, or if those small arms are brought into service or exported, that they will mark them beforehand with an identifying mark unique to each small arm. Moreover, to assist the relevant authorities in tracing illicit small arms, the states parties agree to conduct an information exchange by 30 June 2001 on their national marking systems used in the manufacture and/or import of small arms. This vigorous normative development introduced by the OSCE Document was not followed in Latin America, as the Brasilia Declaration does not lay down any further normative prescription for norm development. Similarly in the same year, in the African context, the Bamako Declaration merely encourages the setting of common standards on marking and record-keeping. The 2000 Nairobi Declaration does not include any mention of these issues. However, it set the stage for the 2004 Nairobi Protocol, which is discussed at the end of this section. In 2001, this slow-moving trend was invigorated with the legally binding force of the Firearms Protocol, which, like the OAS Convention, defines “illicit manufacturing” as the manufacturing or assembly of firearms, their parts and components or ammunition if not marked at the time of manufacture.41 The normative innovation introduced by the Firearms Protocol is that it criminalizes the falsifying or illicit obliteration, removal or altering of weapons markings: 130


Article 5, “Criminalization”: 1

Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences the following conduct, when committed intentionally: (a) Illicit manufacturing of firearms, their parts and components and ammunition; (b) Illicit trafficking in firearms, their parts and components and ammunition; (c) Falsifying or illicitly obliterating, removing or altering the marking(s) on firearms required by article 8 of this Protocol.

In addition, in article 8, for the purposes of identifying and tracing each firearm, states parties are committed at the time of manufacture of each firearm to require unique marking providing the name of the manufacturer, the country or place of manufacture and the serial number. In addition there is a commitment to requiring appropriate simple marking on each imported firearm, permitting identification of the country of import and, where possible, the year of import, to enable authorities to trace the firearm, and a unique marking, if the firearm does not bear such a marking. In the same year, 2001, UN 2001 issued the Program of Action containing four specific paragraphs dedicated to marking and tracing in its final version. The countries that actively proposed clauses were Argentina, the EU, Norway, the United States, the Philippines, Japan, Canada, India, Indonesia and China. The marking and tracing norm’s essence, i.e. marking as an integral part of the weapons-manufacturing process, is reflected in the Program of Action’s final version, with the commitment to ensure that henceforth licensed manufacturers apply an appropriate and reliable marking on each small arm and light weapon as an integral part of the production process. This marking should be unique and should identify the country of manufacture and also provide information that enables the national authorities of that country to identify the manufacturer and serial number so that the authorities concerned can identify and trace each weapon.42 This paragraph achieved its final tone after the proposals of Argentina, the United States, the EU, Norway and especially Canada, which advocated the marking of small arms as critical both to effective control of their movement and to successfully identifying and tracing where small arms are used in, or are the subject of, crime. Canada advocated for a more robust marking regime that would require manufacturers to apply a unique marking consisting of three elements: country of manufacture, name of manufacturer and a serial number. In addition, Canada proposed to add a new paragraph to further promote efficient tracing, as follows: 131


To promote the efficient tracing of small arms and light weapons by ensuring that appropriate markings are applied to firearms on import, permitting the identification of the country of import and a serial number if the firearm does not bear one.43 Along with Canada, the EU advocated for a slightly stronger normative tone that was not included, i.e. “permanent, reliable and universally recognized marking.”44 The Program of Action also succeeded in advancing the norm on marking and tracing along the lines of what most advocates wanted by prescribing the adoption of measures to prevent the manufacture, stockpiling, transfer and possession of any unmarked or inadequately marked small arms and light weapons. This clause was advocated by the EU, the Philippines and the United States. Regarding the establishment of record-keeping measures, both GRIP and the manufacturers wanted the indefinite retention of the records. Nonetheless, the Program of Action includes only a weaker provision to ensure that comprehensive and accurate records are kept by states for as long as possible on the manufacture, holding and transfer of small arms and light weapons under their jurisdiction. In the section on implementation, international cooperation and assistance, states and international and regional organizations are compelled to consider assisting interested states in building capacities in areas including the development of appropriate legislation and regulations, law enforcement, tracing and marking, stockpile management and security, destruction of small arms and light weapons, and the collection and exchange of information. The final version of the Program of Action includes a provision on the voluntary exchange of information on national marking systems on small arms and light weapons. There is also a provision on assistance on tracing and detection of illicit trade in small arms and light weapons. The Biting the Bullet Project had recommended that states should adopt the basic norm relating to tracing that ensured they would cooperate to trace lines of supply that contribute to excessive and destabilizing accumulations of small arms and light weapons. The Program of Action includes this recommendation in a weaker form. Something that would have strengthened norm building at the regional level was for states to undertake to cooperate in the basis of existing regional legally binding instruments in tracing illicit small arms, but this was not included in the final version of the Program of Action.45 The most important component of the provision originally contained in an earlier version of the Program of Action was taken out of the final version, calling on states to develop a legally binding instrument to enable timely and reliable tracing of lines of supply by relevant authorities. The Program of Action therefore contains a substantially weakened clause that calls states to strengthen the ability to cooperate in identifying and tracing illicit small arms and light weapons in a timely and reliable manner. This notwithstanding, the paragraph asks the UN to examine the feasibility of developing an international instrument 132


to enable states to identify and trace illicit small arms and light weapons in a timely and reliable manner. The fact that the final version of the Program of Action calls for the making of an international instrument highlights how robust the development of the norm on marking and tracing is. This provision was advanced by the EU, India, Israel and Japan. In the same year of the Program of Action, the SADC Protocol confirmed the norm on marking and tracing by providing that marking should identify the country of manufacture, the serial number and the manufacturer of the firearm at the time of manufacture, import or export. In 2004, the Nairobi Protocol substantially reinforced norm development in East Africa and the Great Lakes region by including in its paragraph 7 clauses on marking, tracing and record-keeping. Here states commit to mark small arms at the time of manufacture and import with a unique marking providing the name of the manufacturer, the country or place of manufacture and the serial number; and to ensure the record-keeping (at least for ten years) of information in relation to small arms and light weapons that is necessary to trace and identify those small arms and light weapons that are illicitly manufactured or trafficked, and to prevent and detect such activities. As mentioned earlier in the chapter, the General Assembly recently (October 2005) adopted a politically binding instrument on marking and tracing. Advocacy NGOs like Amnesty International, OXFAM and IANSA repudiated the outcome as slow (it took four years to appear) and riddled with ambiguities likely to undermine any substantial contribution to problems associated to international arms trafficking. Ammunition was excluded (it was recommended that this be negotiated under yet another agreement) and the possibility was included of not releasing information given to states on the basis of “national security.”46

Main mechanisms of norm diffusion In the processes of norm building analyzed here, teaching was a prominent mechanism for norm diffusion. During the Preparatory Committees for UN 2001, GRIP circulated brief reports aimed at raising awareness and influencing the position of states toward the necessity of developing a harmonized norm on marking. What is more, the Biting the Bullet Project, as shown, published and circulated its briefings in a systematic way to key policy-makers within the process. The process of norm development in this case is noticeably distinct from the others analyzed earlier in this study, in the sense that there was a relative convergence of positions amongst the actors. This congruence of opinions, combined with a strong regional normative development, notably in Europe and in the American hemisphere, together with the activism of Switzerland and France, worked for a vigorous norm-building process. The role of these two countries was key in this process; therefore, this case study accepts the second hypothesis, which affirms the leading role of states in norm formation. The role of non-state actors was supplementary to this process, but was key in furthering 133


Table 5.2 Mechanisms and actors for norm diffusion on marking and tracing Main mechanism Teaching and coalition building Main non-governmental actors GRIP

Biting the Bullet

Leading norm entrepreneurs None Main governments Switzerland and France Most evolved norms OSCE Document

knowledge on possible elements that should constitute an international norm, such as carrying projects like the Draft Convention on Marking, Registration and Tracing.47 Therefore, this case study accepts the first hypothesis, which focuses on the role of non-state actors in norm building. Differently from the case study on brokers, there was an absence of individual entrepreneurship: the EPG did not act as such, even though it was ostensibly created for this purpose. Therefore, this case study rejects the third hypothesis, which affirms the leading importance of norm entrepreneurs.

Norm emergence since 2001 The solid development of the norm on marking and tracing is validated by several developments that took place within the UN after UN 2001 and the adoption of the International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons in October 2005. This is the first multilaterally negotiated international document on one of the specific emerging norms on small arms. Arguably, marking and tracing arms and ammunition is a central piece of the efforts to curb the “spread of small arms” puzzle. Therefore, an international system for tracking illicit arms and ammunition is key to improving accountability in the international arms trade and preventing arms from getting diverted. Leading NGOs thought that the United Nations’ negotiations in this regard were a historic opportunity to take a strong position against the proliferation of illicit arms and their use in violation of human rights and international humanitarian law.48 These NGOs set a high bar by expecting a legally binding instrument, but were disappointed to see only a politically binding agreement containing many compromises that will not help to stem the worldwide tide of violence. Ideally, it would have been desirable for this agreement to have been negotiated outside the UN, so that the pressure of a small number of states would not have had such an enormous impact. However, from the standpoint of the study of norms in international relations, the multilateral negotiation of this instrument 134


is important for a number of reasons: the formation of an internationally agreed basis from which further opinio juris and state practice can derive; possible change in national legislation to accommodate the new instrument into national laws; the creation of a foundation upon which future legally binding commitments can be built; and, most importantly in the matters of marking and tracing, the possibility of enhanced international cooperation among key stakeholders. Essentially, in the case of this instrument in particular, enhanced international cooperation is the centerpiece of the agreement.49

135

Part 3 FAILED OR WEAKER INTERNATIONAL EMERGING NORMS

6 CREATING A NORM OF TRANSPARENCY IN SMALL-ARMS TRANSFERS

Introduction This case study will examine whether the weak and highly contested emerging norm on transparency in small-arms transfers is manifest in state practice or in the politically and/or legally binding regional and international documents analyzed here, i.e. whether states reveal full, accurate, comprehensible and timely information on their small-arms shipments abroad and on licensed exports or imports, including parliamentary oversight of weapons transfers and parliamentary scrutiny of arms licensing and import decisions (these components of the norm are detailed in Table 6.1).1 As a general indicator of the state of development of this norm, the Small Arms Survey 2005 Transparency Barometer shows that even the most transparent states are nowhere near to achieving the ideal of full transparency.2 The processes of norm building of such an emerging norm are inextricably associated with previous norm-building developments in the field of conventional arms transfers. In control to the other case studies, the attempted development of an international norm of transparency on small-arms transfers has a complex and evolving history that extends beyond the small-arms debate. The background to the development of this norm is the practice of exchanging military information in the Cold War period between the superpowers, which was extended from weapons of mass destruction to encompass conventional weapons and, subsequently, small arms. Hence, exchange of information is considered in this case study as a first step toward the development of a potential international norm on transparency on small-arms transfers.3 The idea of transparency in arms transfers that evolved throughout the 1990s is located within the framework that initially pertained to the idea of “excessive and destabilizing” arms transfers that appeared after the Iraqi invasion of Kuwait. Nonetheless, the concepts “excessive and destabilizing” were never really defined. The contours of this idea were dropped by the Conference on Disarmament at the UN that was charged with establishing the yardstick to measure when certain arms transfers could be deemed destabilizing in enhancing conflict and aggravating violence.4 As a result, “transparency in armaments” was 139

FAILED OR WEAKER INTERNATIONAL EMERGING NORMS

eventually abandoned as a topic for UN General Assembly resolutions. As such, the transparency mechanisms that evolved thereafter, like the UN Register, are of a classic arms-control nature disconnected to the idea of “human security.”5 The organizing principle behind such arms-control agreements was interstate wars or their possibility. As we have seen, this principle has transformed itself dramatically, especially since the end of the Cold War. Therefore, as major conventional weapons go, there is a weak emerging norm on “reporting on arms export and import” that is not uniform and does not translate into behavior in all countries. There is no norm of restraint in conventional arms transfers as initially conceived by the idea of preventing “excessive and destabilizing” arms transfers. This scenario can be extrapolated to the small-arms debate when discussing an international norm on transparency. The heart of the international governmental debate on small arms centers around curbing illicit trafficking. However, most states hardly make their customs or police seizures of illicit arms publicly available.6 Since UN 2001, there has been only modest progress on transparency in some regions, namely the OSCE, the OAS and in Africa, with the Nairobi Declaration and the SADC Protocol, but not internationally. Even such developments represent exchanges of information that are confidential to the state parties.7 Also, the kind of reporting demanded by transparency mechanisms is highly complex, not harmonized across states, seldom timely, and hardly translatable to meaningful international indicators. Given the security arrangements and situations of specific regions in the world, governments view transparency differently, and will probably not overcome their security dilemmas to fulfill the demands of a putative emerging norm on transparency. A weak and contested international norm of transparency only evolved in some regional contexts, as will be demonstrated, especially within the OSCE, but it did not evolve globally and probably will not. Actually, the framework of “transparency in small-arms transfers” might be inappropriate, as it relies on this inadequate framework of “transparency” as a pure arms-control mechanism as devised during the Cold War.8 The historical realities that enabled the idea of transparency to emerge are radically different today and are based on different organizing principles. The weapons that cause most of the damage today are small arms, used mostly by non-state actors in intrastate conflict and in violence in cities and urban areas. Therefore, to frame the need for more responsible transfers as “transparency in arms transfers” may not be the most appropriate way to enhance state responsibility, as the policies resulting from such a framework will not be the ones most suitable for the political realities within which a norm would have to function. However, there is more danger and more uncertainty where there are fewer multilaterally agreed standards and norms, and the resulting lesser accountability. In the case of small arms, export controls may be the most applicable framework to take into account excessive and destabilizing transfers.9 The Small Arms Survey has assessed that transparency on small arms is mostly needed regarding end-users of the arms exported.10 Framing more 140

CREATING A NORM OF TRANSPARENCY

responsible arms transfers within an export controls framework might just be the most applicable norm for states to build. Already existing frameworks, like the OSCE Document and the Wassenaar Arrangement already have such mechanisms in place. The chapter will examine which characteristics, or enabling conditions, and main events of the post-Cold War world enabled a previously existing norm on transparency in conventional weapons to first emerge, and whether this paved the way (or not) for an emerging norm on transparency on small-arms transfers, specifically. In this regard, the chapter will deliberately focus on the UN, as it was the site of the development of the UN Conventional Arms Register – the first transparency initiative in conventional arms transfers.

Enabling conditions for the norm on transparency to emerge in the post-Cold War period The idea of transparency in arms control during the Cold War evolved from the inclusion of provisions for the exchange of information on specific aspects of activities in the military field in formal and informal international arrangements, which later developed into more elaborate regimes consisting of inspections and monitoring. In particular, the practice of transparency during the Cold War emerged as a response to specific security interests or concerns of the superpowers, enhancing confidence among them and reducing the risk of misunderstanding or miscalculation.11 The initial development of a potential international norm on transparency, even if lukewarm, did not occur in a vacuum. There was an enabling supporting ideational context that upheld the appearance of the norm. Three main normative shifts that occurred after World War II and the founding of the UN were conducive to transparency and acted as the supporting normative structure: democratization, multilateralism and restrictions on the use of force, which worked as contingent factors.12 By the same token, multilateralism has become notably prevalent after World War II, together with calls for the non-discriminatory application of agreed principles of conduct. Under multilateralism, the rule of law rather than the rule of power is supposed to guide state actions. It can be said that transparency found an advantageous condition of legitimacy under the non-discriminatory rules promoted by multilateralism.13 Since World War II, there has been a profound change, not only in the distribution of power, but also in the way it is exercised; and limited practices of transparency are arguably spreading as part of two important trends: democratization and globalization. Some observers say that transparency is a rapidly spreading phenomenon mainly due to the diffusion of democracy and the rise of the global media, international institutions and international norms.14 Other observers, especially in the arms-control area, say that transparency as part of traditional arms control mandates has been used for decades and is an accepted practice of multilateral arms-control arrangements, in order to ensure 141


compliance. For instance, in the nuclear non-proliferation regime, the states have counted on the inspection programs of the International Atomic Energy Agency (IAEA) to monitor facilities.15 Such proponents of transparency go further in arguing that, in the context of the sweeping ideational changes brought about by the end of the Cold War, there was a political space for unprecedented transparency. These observers attribute this mainly to three overarching and complementary phenomena: the infiltration of the media everywhere, the information technology revolution and the spread of democracy, arguing that there is some dislocation of power from governments to NGOs, international regimes, epistemic communities and multinational corporations. Nonetheless, these trends have not weakened the state; on the contrary, the state remains the central actor in international relations.16 Others have pointed to various factors enabling the emergence of more transparency amongst states, namely:17 • • •

•

the extensive availability of the Internet, satellites, e-mail, cellular telephones, satellites and television that transformed communication; the rise of global media (or the so-called “CNN effect”); the wealth of international regimes that have put into practice both the normative duty to openness and practical obligations to open information; and economic globalization and the spread of markets, which also contribute to transparency. Increasingly, investors demand information about a country before investing in it.

It is relevant here to test whether the conditions mentioned above, which are put forward by observers who are “transparency optimists,” really fostered transparency (on arms transfers, of interest here); i.e. whether such conditions spurred an emerging norm on conventional arms transfers, and then, subsequently, a potential emerging norm on small-arms transfers specifically.

The path of norm emergence on transparency regarding conventional arms transfers in the post-Cold War period During the Cold War, the role of a prestigious entrepreneur, the United States, was important in promoting normative change and spurring transparency as a practice among states regarding weapons of mass destruction, whereas an enabling framework for normative change regarding transparency on conventional weapons only appeared at the beginning of the 1990s.18 In late 1991, the EU and Japan took the lead at the UN in advocating for support for a General Assembly resolution to establish an arms register.19 This activism was preceded by a key study promoted by the UN General Assembly that served to advance knowledge in the field of transparency with regard to conventional arms transfers. 142


The UN role in the generation of knowledge on conventional arms transfers: a prerequisite for norm building As seen in other case studies examined here, knowledge usually precedes norm building. In the case of the building of a potential norm on small-arms transfers, the UN Study on Ways and Means of Promoting Transparency in International Transfers of Conventional Arms (hereafter referred as the UN Study) is the single most important UN research and policy document on transparency and illicit arms trafficking, setting the stage for the development of a potential norm of transparency with regard to conventional arms transfers in the post-Cold War era.20 Despite previous unsuccessful initiatives within the UN to promote transparency on conventional arms, the UN Study further established knowledge and helped to strengthen awareness of the related subjects of transparency and illicit arms trafficking. A practical recommendation issued in the UN Study was the creation of the UN Register of Conventional Arms Transfers (hereafter, the UN Register), with wide repercussions not only for changing state practice, but also for promoting normative change with regard to arms transfers. The UN Study was the result of a General Assembly resolution introduced by Colombia on 7 December 1988 requesting a study on ways and means of promoting transparency in international transfers of conventional arms on a universal and nondiscriminatory basis. The UN Study broke new ground on the perception that rising illicit arms trafficking was a particularly disturbing dimension of the postCold War international arms trade and that more transparency on legal transfers was needed: The issue of international arms transfers and the illicit arms trade has for many years attracted the interest and concern of the international community. The present study, however, is the first UN study devoted specifically to this issue. During the course of the Group’s deliberations, this intrinsically important subject has moved high on the international agenda.21 Between 1988 and July 1991, when the UN Study was completed, extraordinary changes took place in the international security environment and the subject moved higher on the international agenda. The Iraqi invasion of Kuwait in 1990 showed the negative consequences of conventional arms build-ups. This event catalyzed the need for proposals for restraint in international arms transfers. Initiatives in this area, together with the end of the Cold War, made it a propitious time for progress toward a more judicious approach to arms transfers. Against this scenario, an emerging consensus appeared among countries that international security and stability would be strengthened by increased openness and transparency in the military field in general, including the area of arms transfers.22

143


The UN Study and its implications for promoting norm development on transparency In the Secretary-General’s foreword to the UN Study, Kofi Annan highlights that one of the significant advances in the years following the end of the Cold War was the appreciation of the value of transparency and openness in relations among states: One of the significant advances of recent years has been the appreciation of the value of transparency and openness in relations between States. It was this recognition that, in large part, led to the adoption by the General Assembly on 7 December 1988 of resolution 43175 I, requesting a study on ways and means of promoting transparency in international transfers of conventional arms on a universal and non-discriminatory basis.23 The UN Study was the first document to assert that the illicit arms trade is very destabilizing and detrimental to national and international security and is a distinct phenomenon that deserves to be dealt with separately in policy arenas. By the same token, the study views the promotion of transparency in arms transfers as one element in the wider context of confidence-building measures, arms limitation and disarmament. This concept puts the importance of transparency in perspective and identifies potential synergistic effects of transparency measures in different fields. For instance, measures to promote transparency in arms transfers and similar measures in other military fields, such as defense holdings, procurement and military expenditures, and the exchange of information on military structures and doctrines could reinforce each other.24 The UN Study is also instrumental in advancing the purposes and objectives of promoting a norm on transparency. The promotion of transparency in the international transfer of conventional arms is not a goal in itself, but a means serving one or several further ends. The most important intended effects of transparency are: the building of confidence and security; the reduction of suspicions, mistrust and fear; restraint on a unilateral and multilateral basis; and the timely identification of trends in arms transfers. However, regarding transparency in conventional arms, recent observers have remarked: As for norms, they remain as they were in 1991: every state has a right to defend itself by manufacturing, exporting, and importing any weapon it deems fit in the name of national defense. It was expected that, with the development of a working definition of “excessive and destabilizing,” a norm of restraint in arms exports and imports would emerge, especially involving transfers to “situations of tension or conflict.” Such norms have emerged in a few regions (for example, the 144


EU Code of Conduct) but not globally. It is true that as a result of the Register there is an emerging norm that states should voluntarily submit arms export and import data.25 In addition, the building of confidence, reduction of suspicions, restraint, and timely identification of arms transfers trends are all organizing principles of traditional arms-control agreements that are outdated when dealing with small arms. The world of arms transfers nowadays is far more complex than achieving the reduction of suspicions among states, as there are prominent intrastate conflicts and problems that have noticeable international effects. In addition, there are more actors than only the states that play a role in arms transfers. All these factors mean that traditional means of dealing with creating more transparency in small-arms transfers have been outgrown. From the standpoint of the study of emerging norms, though, it is interesting to ask whether the only globally existing mechanism to enhance transparency in conventional arms transfers has served as an enabling normative framework for negotiating transparency in small-arms transfers. The UN Conventional Arms Register: the origins of a regime of transparency in conventional arms transfers? The 1990s was the decade for the development of an emerging (weak) norm of transparency on conventional arms transfers. The Iraqi invasion of Kuwait was the catalyzing event for supporting the development of greater transparency in conventional arms transfers amongst states. Some observers say it represented an outstanding breakthrough as it was the first time that governments had made such data public since the 1930s.26 In the aftermath of the Iraqi invasion of Kuwait, on 6 December 1991, the General Assembly adopted Resolution 46/36L, entitled Transparency in Armaments, which requested the Secretary-General to establish and maintain a universal and non-discriminatory Register of Conventional Arms, which would include data on international arms transfers, as well as information provided by member states on military holdings, procurement through national production and relevant policies aimed at bringing about greater transparency regarding conventional arms holdings. The political shock of the Iraqi invasion of Kuwait led to the successful conclusion of the Chemical Weapons Convention and the establishment of the UN Register, which gave incentives to states to voluntarily publish their arms exports and imports. After General Assembly Resolution 46/36 L established the UN Register, the UN passed numerous resolutions on transparency in armaments, always stressing the relationship between transparency and security.27 However, these resolutions stressed that the principle enshrined in the UN Register should also apply to weapons of mass destruction and to transfers of equipment and technologies directly related to the development and manufacture of such weapons, but initially without any reference to small arms. 145


The UN Register is not a fully-fledged transparency regime and it is far from achieving such a status.28 Arguably, however, according to the chair of the UN Panel of Governmental Experts on Small Arms, it was with the establishment of the UN Register that the problems caused by small-arms started to attract the attention of world leaders.29 Advocates of small-arms control assert that the inclusion of small arms in the current UN Register would enhance the current mechanism and would be more beneficial than creating another regime. They claim that the enlargement of the UN Register would make it more relevant for certain developing regions like Latin America and Africa especially, where major conventional weapons are less prominent anyway. The UN Register’s current format is of little relevance for sub-Saharan African countries, for instance.30 Whether these advocacy claims bear on influencing state practice or not is of interest here. An illustration of successful advocacy toward the enlargement of the UN Register is the recent addition of shoulder-fired surface-to-air missiles in category VII of the register.31 Has the appearance of an incipient regime, even though weak and voluntary, contributed to paving the way for norm building on transparency on small-arms transfers? Or does the appearance of another regime, namely the Wassenaar Arrangement, prove that there is an emerging norm on transparency? Whether this is the case or not will be examined in the subsequent sections. An instance of state practice on transparency: the Wassenaar Arrangement The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies (hereafter Wassenaar Arrangement), formally established in July 1996, is a voluntary export control regime whose member states exchange confidential information and notifications on transfers of conventional weapons and dual-use goods and technologies.32 Through such exchanges, the Wassenaar Arrangement aims to promote responsibility among its members in exports of weapons and dual-use goods and to prevent destabilizing accumulations.33 Aiming at promoting transparency, the Wassenaar Arrangement calls on states to make a series of voluntary information exchanges and notifications on their export activities related to weapons and items appearing on the arrangement’s two control lists.34 Every six months, members exchange information on deliveries of conventional arms to non-Wassenaar Arrangement members in the same categories as the UN Register, with one notable difference: small arms and light weapons were added in December 2002, after years of debate.35 Of relevance for the analysis of norm building on transparency regarding small-arms transfers is the fact that the Wassenaar Arrangement adopted the Best Practice Guidelines for Exports of Small Arms and Light Weapons in December 2002, where participating states affirm that they will apply strict national controls on the export of small arms, as well as on transfers of 146


technology related to their design, production, testing and upgrading.36 It has not been all plain sailing, however: Although Wassenaar has overcome a great deal of growing pains, problems persist. Foremost among the arrangement’s difficulties is that members continue to be divided over Wassenaar’s scope, primarily whether the arrangement should become more than just a body for exchanging and collecting information. Because Wassenaar operates by consensus, a single country can block any proposal. In earlier years, a few members consistently refused to fully participate in voluntary information exchanges and notifications on dual-use goods, though participation has reportedly improved.37 The 2003 Plenary of the Wassenaar Arrangement made significant contributions to the fight against terrorism by means of export controls, included tightening controls over man-portable air-defense systems (MANPADS), and agreed to enhance transparency of small-arms and light-weapons transfers, establish elements for national legislation on arms brokering, and adopt end-use-oriented controls by encouraging member governments to impose export controls on certain unlisted items when necessary to support UN arms embargoes.38 Wassenaar Arrangement members, however, could not reach agreement on exchanging information annually on their small-arms and light-weapons exports because of Russian opposition. Therefore, despite the fact that the Wassenaar Arrangement is an initiative aimed at promoting transparency, by virtue of the fact that its deliberations remain secret and the inclusion of the category of small arms is still very recent, it may be premature to assess whether this forum serves to enhance international norm-building processes on transparency in small-arms transfers. Therefore, in the next section, norm development and diffusion, or their failure, will be assessed in documents and practice established before UN 2001, and up to the present.

Norm development on transparency regarding small arms Researchers and small-arms advocates in general believe that transparency in small-arms exports is amongst the most important initiatives that governments concerned about the humanitarian and criminal impact of small-arms proliferation can undertake. In addition, they also believe that transparency, as a widely practiced norm, may help to protect business investments, development projects, aid workers, tourists and local citizens from armed conflagration by providing early warning of potential escalation or an imminent outbreak of conflict, as indicated by the influx of a large number of guns and other light weapons.39 Post-Cold War trends in humanitarian campaigning and intervention, together with globalization, played a role in the norm-building processes on transparency 147


in conventional arms transfers, and in small-arms transfers in particular, in terms of the expectations this generated for governments to acquaint the public with information on arms exports and imports. As a result, more governments now give an account of the monetary value of weapons transfers. However, if a report does not contain detailed information on types of weaponry, quantity and recipients, then export reports are largely useless in providing early warning, permitting democratic accountability, preventing diversion of weapons to the black market or curbing corruption associated with the arms trade.40 The Wassenaar Arrangement, for instance, falls into this category. The most comprehensive source of information on the small-arms and lightweapons trade is from the UN Commodity Trade Statistics Database (UN Comtrade). The top small-arms exporters are the United States, Italy, Brazil, Germany, Belgium, the Russian Federation and China. The top importers are the United States, Cyprus, Saudi Arabia and South Korea.41 Two of the three top global producers of small arms, Russia and China, are not transparent in their arms exports. This represents a huge hindrance for an assessment of the global trade and evidently the international community is far from understanding the complete picture of the authorized trade.42 For the most part, then, the trade in small arms is still conducted in a non-transparent way. Just a few states present meaningful information on their small-arms exports. There is even less openness on the decision-making process with regard to licensing arms exports, and only Sweden and the United States allow prior parliamentary scrutiny of export licenses.43 In Sweden, parliamentary scrutiny is provided by the Export Control Council, which since 1961 has advised the government on the wisdom of granting or refusing certain sensitive arms export licenses. However, in most EU member states, the parliament has no role in the export licensing process.44 Among like-minded countries with regard to small arms control, whose efforts were important in advancing norms in a number of areas in small-arms control – Mali, Japan, Norway, Canada, Switzerland, South Africa and Belgium – few are fully transparent in revealing their arms transfers:45 Japan and Mali do not report on arms transfers at all, and only Canada divulges the dollar volume of small arms and ammunition it has exported by country. Of the five permanent members of the UN Security Council, Russia and China do not provide any detailed information on their small arms exports, which are thought to be extensive.46 The United States is the most transparent country, producing a detailed annual report featuring its exports by destination and weapon type, and also providing information on quantity and value of exports. The United States has comprehensive national arms export-control policies, including registration of manufacturers and exporters of defense articles and services subject to US jurisdiction; wide-ranging controls on exports of defense services, manufacturing licenses, technical assistance and brokering transactions; rigorous case-by-case reviews of 148


applications or other requests for approval; requirements for US government consent for re-transfers of US-origin defense articles and services; and effective enforcement measures, including a vigorous program of pre- and post-shipment monitoring of US arms transfers. In furtherance of these policies and efforts, the United States has recently proposed the development and negotiation of an “international arms sales code of conduct” as a means of promoting principles and practices of responsibility, transparency and restraint on a wider international scale.47 But, as Jasjit Singh points out: The development of the norm of transparency in the small arms trade is a controversial area. In addition, to be able to be transparent in the realm of arms transfers usually presupposes a degree of transparency practices in the other domains of statehood. Therefore, if a country is not inclined to opened behavior in the domestic level, hardly, it will be in the international level.48 Advocates for the development of an international norm of transparency in small-arms transfers view it as a comprehensive tool for achieving a broader set of objectives, namely: • • • • • • • •

• •

• •

enhancing good governance by curbing corruption associated with the weapons trade; diminishing the diversion of legally supplied arms into the black market; persuading governments to refrain from making transfers that contribute to human rights abuse; curbing the outbreak and escalation of armed conflict and providing some baseline information for disarmament; enabling effective cooperation amongst police, customs and intelligence agencies, and arms-transfer licensing authorities; improving capacity to trace or prevent diversion to unauthorized or destabilizing activities, including sanctions-breaking activities; improving capacity to monitor accumulations and flows of small arms; promoting awareness and understanding of government efforts to implement the international action program, to help cooperation and to promote good practices; promoting awareness and understanding of specific needs, and thus contributing to mobilization of appropriate assistance; enhancing mutual confidence in states’ commitment to prevent and reduce small-arms proliferation and to other international obligations such as full respect for UN arms embargoes; stimulating the development and maintenance of appropriate national monitoring; and promoting record-keeping and information management systems.49 149


During the six months preceding UN 2001, there were only four government statements that make reference to transparency, two of them relating directly to documents analyzed in the next section of this study.50 This shows how weakly the emerging norm on transparency on small arms in particular penetrated states’ practices. The other two statements, both made by the EU, highlight its opinion regarding transparency in its comments on the revised version of the Program of Action before UN 2001, especially in linking the exchange of information and transparency: The European Union supports the proposals regarding information exchange in the context of law enforcement, and as a confidencebuilding measure. However, transparency on legal flows of arms will be of great help to uncover and combat illicit flows of arms. The Programme of Action should therefore encourage States to make information available on exports and imports not only in a regional context, as indicated in section II, paragraph 30, but also at the global level.51 Given that state practice seems to have weakly assimilated the norm on transparency on small-arms transfers, the next section will examine how the emerging weak norm on transparency diffused chronologically by examining states’ legally and politically binding commitments.

Regional and international norm diffusion and influence To complement the analysis of state practice done so far, this section will examine how the norm on transparency weakly diffused until the end of 2001, through the political and legal framework used throughout these case studies. The section will also briefly discuss how norm building deepened and evolved, or failed to do so, in specific regions and at the international level until the present day. As elsewhere in this study, norm emergence (even if it is weak norm emergence) is assessed through the assessment of the threshold point. First, there will be a test to see if the norm became institutionalized in an international setting by looking at whether the components of the norm analyzed were or were not included in the 1997 Panel Report and the 1999 Group Report. This is a useful way to gauge shared assessments within the UN General Assembly. As can be seem in Table 6.1, transparency was not incorporated in the two UN reports. This shows how weakly institutionalized it was. Second, in order to assess if a critical mass of states shares the same understanding regarding an emerging norm, it will be seen if the components of the norm are mentioned in at least one-third of the regional and international documents listed in the upper part of Table 6.1. As can be seen, and as shown in the previous analysis of state practice, the only regional context where an emerging norm seems to have taken hold is the EU. Furthermore, at UN 2001, a total of 150

No

No

No

No

Information exchange on confiscated weapons

Information exchange on destroyed weapons

Regional information No coordination mechanism

Global information exchange mechanism

No

No

No

Information exchange on production

No

No

No

No

Information exchange on exports

No

No

No

No

No

No

No No

No

No

No

No

No

No

No No


No No

Panel Report (1997)

Documents

Commitment to restraint No Information exchange No on imports

Norm components

No

No

No

No

No

No

No No

Group Report (1999)

Table 6.1 Tracking institutional norm development on transparency

No

Yes

Yes

Yes

Yes

Yes

Yes Yes

No

No

No

No

No

No

No No

No

No

No

No

No

No

No No

No

No

No

No

No

No

No No

No

No

No

No

No

No

No No

No

No

No

No

No

No

No No

No

No

No

No

No

Yes

No Yes



134 statements were made by, or on behalf of, 171 countries. Transparency was cited by only 38 of these countries.52 Although the 1997 Panel Report contributed to advancing knowledge about the problems associated with small-arms proliferation and on the nature and causes of excessive and destabilizing accumulations of small arms and light weapons, it did not contribute to advancing normative standards to enhance norm building on transparency on small-arms transfers. This report only acknowledged that the supply of weapons to regions of tension and conflict is characterized by a lack of transparency that is due to the characteristics of small arms and light weapons, which can be easily concealed during transport. It is only important to remark that the UN Study was used as a background document. In the same vein, the 1999 Group Report also did not contribute to norm advancement. Outside the UN, the norm of transparency in conventional arms transfers experienced slow development after 1988, when the UN Study was requested by Colombia. The small-arms regional documents adopted during the 1990s, such as the OAS Convention, the EU Joint Action and the Nairobi Declaration, do not include explicit language on transparency. However, the adoption in 1998 of the EU Code of Conduct, an international arms-export control regime, was an important step forward since it included a mechanism for notifications and consultations. Since its entry into force in June 1998, the Code has helped to increase significantly the level of transparency in arms exports and to promote convergence of the national arms-export policies implemented by member states. The EU Code of Conduct includes a list of sensitive destinations and provides a system of verifying and monitoring end-use provisions, as well as a system of mutual information and consultation on the granting and denial of export licenses. It is not legally binding for the state parties and no mechanism is in place that holds the member states accountable for non-compliance. Therefore, it is up to the countries that have more severe export legislation to restrict exports destined for human-rights violators and then to exert pressure in the bilateral consultation mechanism. The Code has various criteria addressing the refusal of licenses to embargoed or sanctioned countries by the UN, EU and OSCE: human rights standards in the recipient country; restraint of transfers to countries in conflict or that could aggravate existing tensions; and the prevention of illicit arms trafficking. According to prominent European NGOs, the code still needs to build on substance in practice: members of the Council of the EU Working Group on Conventional Arms Exports (COARM) should create a formal mechanism whereby countries that demonstrate commitment to the principles of the Code are progressively integrated into its operation. This should involve varying levels of engagement, from annual exchanges of information 152


on the evolving implementation of the Code criteria, through the quarterly circulation of aggregate denial notifications, to the involvement of partner countries in the denial notification and consultation provisions. Future accession countries should be included in the full operation of the Code at least one year before they become full EU Members.53 Most national parliaments are still given little information on arms transfers or arms-export licenses issued, particularly for small arms and light weapons and other categories of weapons beyond those covered by the UN Register. Some progress has been made, particularly with regard to annual reporting under the EU Code of Conduct, but these systems need to be further developed and adopted as common practice across Europe.54 After the enactment of the Code, the road was opened to the galvanization of the norm-building processes of transparency among EU states, even though large dissimilarities remain in the quality and scope of national reporting and scrutiny mechanisms.55 Instances of change in state practice in the aftermath of the Code can be found. The EU Council of Ministers published a Consolidated Report of the Annual Review of the European Code of Conduct, which provided an important development in transparency within Europe.56 The Code calls on each of the EU’s member states to provide certain information about its arms exports on an annual basis, which has resulted in a dramatic increase in reporting on arms exports from European governments. Before its enactment, and in the face of the lack of a regulatory global framework, some governments had decided unilaterally to provide public information on their firearms and light weapons exports and, in some cases, imports. Sweden pioneered this development in 1985 by reporting on its arms exports.57 Since then, 22 countries have started publishing arms-export reports, and this trend was strengthened in the late 1990s.58 Among these countries are some of the world’s largest exporters of small arms, including the United States, Germany, Belgium and Italy. With the accession of ten new members to the European Union on May 2004, the EU Code of Conduct has become a very comprehensive international arms export control regime.59 An important development in 2004 was the code’s first review since 1998. The review discussion took place between member states and NGOs. It is expected that this will result in a significant updated and upgraded version of the code; most notably, clauses on brokering, transit/transhipment, licensed production overseas, transfer of software and technology, end-user certification and national reporting may be included. However, no agreement has yet been reached to transform the code into a legally binding instrument.60 The year after the EU Code of Conduct was established, norm building at the regional level advanced in the American hemisphere with the OAS’s InterAmerican Convention on Transparency in Conventional Weapons Acquisitions, which was drawn up during the General Assembly in Guatemala City, in 1999.61 Even though this convention is not among the documents listed in Table 6.1, it is included here because it is important for the norm-building processes in the 153


American hemisphere.62 It is also relevant because, in the future, it might also cover the category of small-arms transfers, as happened with the UN Register. The convention requires signatories to disclose information on major conventional weapons exports and imports annually. It was negotiated within the commitments of the states of the OAS to contribute more fully to openness and transparency by exchanging information on weapon systems covered by the UN Register. Its objective is to contribute more fully to regional openness and transparency in the acquisition of conventional weapons by exchanging information regarding such acquisitions, for the purpose of promoting confidence among states in the Americas. The convention imposes two sets of requirements on states parties. First, each state party is required to provide annual reports to the OAS Depositary on its imports and exports of conventional weapons covered by the convention, which are identical to those covered by the UN Register. Second, each state party is required to notify the OAS Depositary of its acquisitions of covered conventional weapons, whether through imports or national production, within 90 days after they are incorporated into the inventory of the armed forces of the country concerned.63 The convention has promoted some advancement in norm development on transparency on conventional arms transfers within the Americas. In April 1998, the presidents of the Mercosur member states (Argentina, Brazil, Paraguay and Uruguay) and associated states (Bolivia and Chile) agreed during a summit in Santiago, Chile, to create a joint registration mechanism of buyers and sellers of firearms, ammunition, explosives and other related materials. Utilizing the model regulations put forward by a commission of the OAS, these countries have established national data processing centers.64 Still in the regional realm, in 2000, another substantive development in enhancing the development of norm building of the norm on transparency in small-arms transfers was contained in the OSCE Document of November 2000.65 This document furthers transparency about small-arms transfers and commercial and non-commercial imports and exports through effective national export and import documentation and procedures in a comprehensive fashion. In it, transparency regarding small arms is conveyed as an idea interconnected with restraint and the strengthening of information exchange. The section on combating illicit arms trafficking includes the stages of manufacturing, marking and record-keeping; therefore, the ensuing transparency measures are also connected to information exchange at the manufacturing stage. As a confidence-building measure, and to assist the relevant authorities in tracing illicit small arms, the participating states agreed for the first time to conduct an information exchange by 30 June 2001 on their national marking systems used in the manufacture and/or import of small arms. They will also exchange available information on national procedures for the control of the manufacture of small arms.66 After setting common export criteria and export controls, the OSCE states started to conduct an information exchange among themselves on an annual 154


basis, beginning in 2002, about their small-arms exports to, and imports from, other participating states during the previous calendar year. Moreover, regarding the management of stockpiles, reduction of surpluses and destruction, the part on transparency is associated with sharing information on the category, subcategory and quantity of small arms that have been identified as surplus and/or seized and destroyed on their territory during the previous calendar year. In addition, participating states will exchange information of a general nature about their national stockpile management and security procedures, and techniques and procedures for the destruction of small arms, and will observe the destruction of small arms on each other’s territories.67 The same advanced normative framework initiated by the OSCE countries did not spread through Africa and was also not reflected in the Latin American common position regarding UN 2001. This is represented by the lack of references to transparency in the Bamako and Brasilia Declarations. By the same token, the Firearms Protocol did not advance any measures on developing the norm of transparency either. This lack of regional vigor in the development of transparency as a regional practice might explain why the Program of Action does not include strong provisions on transparency. Canada, Brazil, the EU and Japan were the proponents of the inclusion of at least a strong paragraph on transparency. Nigeria advanced the notion that regions should be encouraged to develop adequate measures to ensure transparency and confidence building with a view to combating their illicit trade “at the global level” only. Canada’s position was that enhanced openness and transparency and improved information exchange on small arms and light weapons would contribute greatly to confidence building and security among states, including a better understanding of the illicit trade in small arms and light weapons.68 Likewise, Brazil proposed the development of adequate measures to enhance transparency with respect to small-arms and light-weapons transfers, with a view to combating their illicit trade.69 The EU’s position reinforced this provision, encouraging the development of mechanisms that establish transparency, confidence-building mechanisms and the exchange of information, including on exports and imports.70 In addition, Canada articulated that, for the purposes of tracing, transparency could be improved by providing information to Interpol about the nature of markings used and encouraging states to use the facilities of Interpol, in particular through the timely and complete provision of information (including information regarding marking practices) to its Weapons and Explosives Tracking System (IWETS) database or to any other database that may be developed.71 China and the Russian Federation acted to weaken these positions, with phrasings such as “on a voluntary basis,” and “where appropriate.” This weakened norm proposition was reinforced by the Arab group, which worked for the deletion of the entire paragraph that required the development of “appropriate measures to enhance transparency with respect to small arms and light weapons transfers, as a confidence-building measure and with a view to combating their illicit trade.”72 155


This lukewarm enthusiasm for the development of the norm of transparency on small-arms transfers at the regional level was translated into merely a brief reference to it in the final version of the Program of Action: “To encourage regions to develop, where appropriate and on a voluntary basis, measures to enhance transparency with a view to combating the illicit trade in small arms and light weapons in all its aspects.” Following the Program of Action, the SADC Protocol, which was approved after UN 2001, improved norm development in the Southern African region slightly by advancing the development and improvement of transparency in firearms accumulation, flow and policies relating to civilian-owned firearms, and by establishing national firearms databases to facilitate the exchange of information on firearms imports, exports and transfers. By 2006, there is clearly no firmly established international norm on transparency relating to small-arms transfers. Improvements at the regional and national levels have also been restricted. At the international level, the Program of Action did establish exchanges of information on all aspects of small arms in the form of national reports to UNDDA on national implementation. Since 2001, 120 states have submitted at least one report, 67 states have submitted one report, 37 have submitted two, 14 have submitted three, and two have submitted four.73 This presents a fairly bleak picture of an emerging putative international norm. UNDDA, UNDP and the Small Arms Survey have been providing assistance to states in reporting to the UN. For instance, Tajikistan’s only report, in 2003, was produced with such assistance. The Solomon Islands has used the reporting template and has submitted two detailed reports.74 As has been mentioned, thwarting the emergence of a fuller international norm on transparency is the reality that most information exchanged remains confidential. This is the case for most instruments analyzed here. Within the OAS Convention, the Small Arms and Light Weapons Administration (SALSA) system was created to serve as a public portal for exchanging information on national legislation and policy actions. Although an interesting development within the normative framework created by the convention, governments will only exchange confidential information related to imports, exports, transit and confiscated small arms when this is in force.75 In Africa, the Nairobi Declaration gave rise to the 2004 Nairobi Protocol, which dedicates its entire paragraph 17, “Transparency, Information Exchange and Harmonization,” to the subjects of: • •

establishing focal points to promote information exchange to combat crossborder small-arms and light-weapons trafficking; developing and improving transparency in small-arms and light-weapons accumulations, flows and policies relating to civilian-owned small arms and light weapons, including serious consideration to the development of a subregional small-arms and light-weapons register on civilian possession; 156


•

•

• • •

encouraging the exchange of information among law-enforcement agencies on criminal groups and their associates, types of small arms and light weapons, sources, supply routes, destinations, methods of transportation and financial support of these groups; establishing national small-arms and light-weapons databases so as to facilitate the exchange of information on small-arms and light-weapons imports, exports and transfers; establishing systems to verify the validity of documents issued by licensing authorities in the sub-region; establishing a sub-regional system to facilitate intelligence exchange on small-arms and light-weapons violations and trafficking; and establishing a sub-regional system to harmonize relevant import, export and transfer documents and end-user certificates.

This development puts the Nairobi Protocol on a par with the OSCE Document. However, it is too early to assess its effectiveness and participating states’ compliance. Going back to the idea that was advanced in the beginning of this chapter, perhaps a more useful framework for any discussions on transparency would be to focus more on export controls. For the 2006 Program of Action Review Conference, three parallel developments that will possibly enhance the framework for norm building on transparency will be discussed.76 One, under the sponsorship of the British government, is the Transfers Control Initiative (TCI), begun in January 2003. The TCI aims to promote international standards on small-arms transfers and is consulting with several governments. The second will be the Consultative Group Process (CGP) led by the Biting the Bullet Project, also begun in 2003. The CGP has involved over 30 governments from different regions, including Europe, Africa, Asia and the Americas, as well as international experts from NGOs and the UN, in a process of creating guidelines for national controls on small arms, including export and import. The third development is the effort to establish an international Arms Trade Treaty (ATT), initially motivated by Oscar Arias, former President of Costa Rica and a Nobel Prize laureate. The ATT is being sponsored by NGOs, states and prominent international personalities.

Main mechanisms of norm diffusion This case study has demonstrated that some events paved the way for the emergence of a norm of transparency on conventional arms transfers that took place in the aftermath of the Cold War. However, this norm development failed to retain its initial momentum and weakly diffused throughout the regional and international political arenas in the 1990s and beyond, especially with regard to the creation of a potential norm on transparency on small-arms transfers. 157


The important events that contributed to the initial development of the norm of transparency in conventional arms transfers were the end of the Cold War and the Iraqi invasion of Kuwait, which led to the first Gulf War. These two events accelerated a process that was already underway within the UN; i.e. the UN Study, which resulted in the UN Register on Conventional Arms. This was the first mechanism (involving the generation of information) for initiating norm building on transparency in conventional arms transfers amongst states. These developments throughout the 1990s gave an initial impetus to the emergence of the norm of transparency on small arms, even if with disparate patterns of diffusion. Within the European context, the emerging norm diffused mainly through emulation. This can be seen especially where the behavior of progressive states like Sweden encouraged others to follow suit. This pattern was intensified by the enactment of the EU Code of Conduct, which acted as a forum for promoting the norm. The adoption of unilateral policies of transparency from some states like the United States and Canada also encouraged emulation by other states. In 2000, the emerging norm became enshrined within the context of the OSCE Document. In other regional contexts, and in general, there is an absence of norm entrepreneurs to act vigorously to develop the norm of transparency, as in the case of controlling the activities of brokers (see Chapter 4). Therefore, this case study rejects the third hypothesis guiding this study. By the same token, there is, up to 2001 especially, relatively little influence from NGOs; hence, this study also rejects the first hypothesis. The relevant Biting the Bullet report, for instance, which would usually have served to consolidate policy options on norm formation, was relatively weak and did not really advance any concrete measures or espouse the hypothetical norm presented here.77 This may change after the Program of Action Review Conference of 2006 with the three parallel developments described in the preceding section. The initial weak development of the norm of transparency on conventional weapons transfers, and small-arms transfers in particular, seems to have followed a pattern of contingency on world events (e.g. the creation of the UN Register after the Iraqi invasion of Kuwait), rather than being the result of the entrepreneurial efforts of like-minded states or of particular individuals, as in the case of the norms on controlling illicit brokering and weapons marking. Likewise, the efforts of NGO groups in Europe proved to be fruitful in the resulting adoption of the EU Code of Conduct, but this trend did not translate into other regions or other initiatives. Therefore, this case study rejects the three hypotheses guiding this study. Instead, it suggests that the absence of individual, NGO or like-minded states’ entrepreneurial efforts in advancing the norm of transparency explains why this norm is not yet robust. As seen in the other case studies, it is the presence of at least two of the three groups advanced in the hypothesis that produces norm advancement. The formation of an emerging norm on transparency was a state-led process initiated by the United States during the Cold War that evolved and enlarged to 158


Table 6.2 Mechanisms and actors for norm diffusion on transparency on small-arms transfers Main mechanism Emulation Main non-governmental actors None Leading norm entrepreneurs None Main government involved United States (initially) Most evolved norms OSCE Document

include conventional weapons throughout the 1990s and, in the late 2000s, to include small-arms transfers. Nonetheless, there is no process of like-minded states coalition building, as seen, for instance, in the case of controlling illicit brokering activities. The UN acted as an important site of agenda setting for norm building, just as in the case of weapons destruction, producing the bedrock study that contributed to initiate the norm on conventional arms transfers. Unlike in the case of brokers, where there was one shock event that started putting brokers under the international spotlight, in the case of norm building on transparency, there was no such shock event. The norm-building process, even if weak internationally and successful in certain countries, or in the European context specifically, was more the result of concomitant historical factors that unfolded during the Cold War and its immediate aftermath. Obviously, the Iraqi invasion of Kuwait accelerated a process already underway, but in no way spurred the initiatives of individuals or groups of states.

Norm emergence since 2001 There are some promising initiatives for norm building at the regional level, such as the pilot project Small Arms Transparency and Control Regime in Africa (SATCRA), established in 2004, which includes Burkina Faso, Cameroon, Djibouti, Gabon, Kenya, Mali, Mozambique, Nigeria, South Africa and Togo. But as this chapter has demonstrated, the creation of a sound international norm on transparency in small-arms transfers still has a long way to go before it leaves the incipient stage of international diffusion.

159

7 REGULATING CIVILIAN GUN OWNERSHIP

Introduction No process of international norm emergence within the small-arms control debate has sparked more controversy and dissension than the one of creating a commonly agreed international norm on controlling private gun possession.1 This chapter will demonstrate that the UN 2001 did not consolidate a commonly accepted putative international norm in this area. The Program of Action does not contain a clause on this specific matter because of pressure from the United States (and the veiled acquiescence of a small group of states). Therefore, the only comprehensive international instrument dealing with small arms does not cover civilian possession of arms. However, the 1999 UN updated International Study on Firearms Regulation2 indicated that almost three-quarters of states have firearms regulations. Since this study, more than half of the participating states have reported recently amended legislation on civilian firearms ownership.3 A 2004 survey concluded that 79 of 115 states prohibit the civilian possession of fully automatic military-style assault rifles.4 By 2006, 133 states had laws and procedures criminalizing the illicit possession of small arms, and 47 states had reviewed at least some of their laws and/or procedures governing civilian possession of small arms, the domestic smallarms trade and small-arms manufacturing since 2001.5 Lora Lumpe notes three aspects related to the perception of the relationship between violence and unrestrained civilian gun possession held by most states.6 First, most problems caused by the unrestricted availability of small arms are “civilian”: most guns are owned by civilians, and 60 percent of the global stockpile of 640 million small arms is in possession of civilians.7 Second, most of the victims of the violence are civilians: 200,000–270,000 people die each year of non-conflict-related gun violence.8 And third, there is now a general recognition that civilian-owned guns help to fuel the illicit arms trade as a result of theft, unsafe storage or sale. Since UN 2001, there has been a trend toward the internalization of rigorous new laws on civilian possession. Recently (of the 47 cited above), more than a dozen states have adopted stringent national civilian gun-ownership regulations. 160

REGULATING CIVILIAN GUN OWNERSHIP

Therefore there seems to be a strong de facto emerging international norm deriving from a growing consensus on the practice of states worldwide, but not yet enshrined in any international convention. Currently (2006), therefore, the impetus for normative change and norm building has enormously strengthened and, in contrast to before UN 2001, there is growing international support for the inclusion of civilian gun ownership as part of the multilateral negotiations addressing the illicit trade in small arms: This momentum is borne largely of the realization that, while national firearms regulation is a sovereign policy decision (like other policies, such as export guidelines), a lack of effective national regulatory systems not only jeopardizes the safety of that State’s citizens, but also – through trafficking – the citizens of other countries. While many States have populations of gun owners and users, most recognize their responsibility – nationally, regionally and globally – to specify the legal responsibilities of civilians possessing weapons.9 If the norm is to be moved forward, a creative multilateral process will have to be put in place, in the mold of the landmines campaign. However, the consensus regime within the UN will probably once again hinder the inclusion of any clause on civilian possession due to the pressure of the United States and other less-influential countries. There are numerous NGOs and think tanks across the world that work for the consolidation of this norm, not only in domestic arenas, but also at the international level.10 Equally, however, others support the concept of unrestricted civilian possession of guns. In Appendix 1, some of these will be mentioned briefly, as an illustration of the topics debated here and as a way to further illustrate the norm diffusion mechanisms. Here the focus will be on two prominent activist groups: one pro-gun regulation, Viva Rio, in Brazil; and the other opposing gun regulation, the National Rifle Association (NRA) in the United States. These two advocacy groups were chosen for two reasons. First, Brazil represents an excellent illustrative case of recent change toward restrictive gun law; moreover, Viva Rio is an instance of a non-state group influencing a dramatic change in state policies. Non-state groups influencing state behavior is of great interest in the study of normative change. And, second, the NRA was chosen due to the sheer size of its lobbying power that advocates for civilian gun possession in the United States. This is relevant here because it was due to the American position that the clause on civilian possession of arms was not properly dealt with at UN 2001. Finally, the choice of these two groups is a good way to assess the mechanisms of norm diffusion present in their advocacy initiatives. It is essential to note that at the beginning of the small-arms debate in the 1990s, there was considerable reluctance on the part of the established NGOs working on disarmament, particularly the ones that were based in the United States, to include any reference to controls on civilian possession of firearms for 161


strategic reasons. This was in stark opposition with the Southern founding members of IANSA, such as the Arias Foundation, Viva Rio and Gun Free South Africa, for example, who from the start wanted the inclusion of civilian possession on the IANSA agenda. It took hard advocacy from these groups to have the civilian possession gun control groups invited to the initial IANSA founding meeting (see Chapter 2), as it was critical, particularly in the South, to include civilian possession on the agenda, as most of the guns misused were not post-conflict weapons in places like South Africa (despite the rhetoric).11 In addition, governments like those of the Netherlands, South Africa, Brazil and Canada were firm on the issue and sponsored meetings; this differed from the position of others, like Switzerland and the United States. Therefore, the potential norm is the result of many years of hard advocacy work from the cited NGOs, among others, and governments. This chapter is based on the search for the emergence of a potential hypothetical norm on controlling civilian gun ownership, contained in a key document: the 1997 UN Economic and Social Council (UNECOSOC) report on crime prevention and criminal justice, which is still largely endorsed by prominent advocates and NGOs and which encourages: Member States to consider, where they have not yet done so, regulatory approaches to the civilian use of firearms that include the following common elements: (a) Regulations relating to firearm safety and storage; (b) Appropriate penalties and/or administrative sanctions for offences involving the misuse or unlawful possession of firearms; (c) Mitigation of, or exemption from, criminal responsibility, amnesty or similar programs that individual Member States determine to be appropriate to encourage citizens to surrender illegal, unsafe or unwanted firearms; (d) A licensing system, inter alia, including the licensing of firearm businesses, to ensure that firearms are not distributed to persons convicted of serious crimes or other persons who are prohibited under the laws of the respective Member States from owning or possessing firearms; (e) A record-keeping system for firearms, inter alia, including a system for the commercial distribution of firearms and a requirement for appropriate marking of firearms at manufacture and at import, to assist criminal investigations, discourage theft and ensure that firearms are distributed only to persons who may lawfully own or possess firearms under the laws of the respective Member States . . .12

162


Controlling civilian gun ownership: from domestic law to international norm The formation of this norm at the international level was considerably curtailed by the opposition of the United States at UN 2001. No other potential norm has stirred so much controversy or discord, and most remarkably, none has received so much passionate support and activism by all types of actors. Usually the literature utilized here focuses on how international norms become salient in the domestic realm. This case study examines the inverse road, which is less studied, i.e. how a previously existing practice at the domestic level attained the status of being an object of polemical activism on the road to becoming – or failing to become – an international norm. In 2002, there were at least 639 million firearms in the global small-arms stockpile. The most dynamic area of small-arms ownership continues to be civilian ownership. Civilian owners have at least 378 million firearms, 59 percent of the global total. They purchase more than 80 percent of the eight million new weapons manufactured every year.13 An international norm on civilian arms possession is based on the premise that gun ownership in itself does not cause violence, but does increase its lethality. The core of the policies on gun-violence reduction and prevention concentrates on curbing supply and encroaching on the lenient access to guns in most parts of the world.14 In addition, arguably, gun possession laws are expected to lessen the possibilities of diversion of weapons to black markets.15 It is also believed, albeit controversially, that access to arms augments the likelihood of their unlawful and violent use. The relationship between restriction of gun possession and its results on levels of violence is controversial. Whereas some evidence points to more gun control leading to less violence, other evidence indicates that more guns are likely to reduce violence.16 Even though the relationship between gun ownership and availability and violence is complex and controversial,17 the connection between gun availability and human insecurity is well known. •

• •

•

•

The United States public holds one-third of the global gun arsenal: an estimated 234 million guns. The US firearms homicide rate is the highest of any developed country. Latin America and the Caribbean are the worst affected regions, with 60 percent of all murders occurring with a gun. Worldwide, there are four homicides for every suicide committed with a firearm. In North America and Europe, armed suicide rates surpass those of armed homicides. Armed injury, rape, robbery and kidnapping plague countless civilians around the world annually. Arming can lead to violence which fuels fear, which can produce more arming. The majority of users and abusers of guns globally are men. They are also the primary victims of gun violence, particularly males between the ages of 14 and 35 years. 163


•

•

While women account for a substantial proportion of victims (especially through intimate partner violence), they account for a relatively small percentage of the users. Guns often fall into the hands of young people, leading to suicides, interpersonal violence and accidental deaths. Furthermore, the World Health Organization reports that there has been an “alarming increase” in suicides among young people aged 15 to 25 years worldwide.18

As indicated, most countries, to varying degrees, have some form of regulation on civilian-owned firearms. The developed countries in particular have long prohibited some types of firearms and have regulations that specify which weapons can or cannot be civilian owned. In recent years, the trend in countries such as these has been in the direction of increasing regulation.19 There were catalyzing shock events, mostly random mass killings of innocent civilians, that prompted the UK, Australia and Canada to pass stringent new regulations. Canada’s worst mass shooting took place at the Ecole Polytechnique on 6 December 1989 in Montreal. This tragedy spurred efforts for tighter gun laws and greater awareness of societal violence – particularly domestic abuse. Canada’s tighter gun law was achieved mainly as the results of efforts by survivors and relatives of the victims of the Ecole Polytechnique shooting. This shock event in Canada, which still motivates a great deal of social pressure in the Canadian Parliament to keep tightening the law, was similar to what happened in 1996 at Port Arthur in Tasmania, Australia, where 35 people were killed and 18 wounded in the largest massacre ever perpetrated by a single gunman anywhere in the world. The killer used AR-15 and FN 308 semi-automatic rifles – guns that were banned in most of Australia, but legally available for sale in Tasmania. The public outrage resulting from the Port Arthur massacre led to the National Firearms Agreement, which banned all semi-automatic rifles and shotguns. The agreement, involving federal, state and territory governments, also harmonized gun laws throughout Australia, requiring registration of all firearms and proof of good reason for gun ownership, and setting a minimum age of 18 for gun ownership. The National Coalition for Gun Control was at the forefront of the campaign for the National Firearms Agreement and continues to work for a ban on handguns.20 Australia has commenced a national system of registration and licensing, along with a buy-back program to remove now-prohibited firearms from the hands of owners.21 Likewise, Britain has established a total ban on handguns, in addition to its longstanding licensing and registration requirements for all gun owners and firearms. Researchers and advocates for civilian arms possession regulations, especially originating from these regions, advance the following main reasons for norm development at the international level. First, there is considerable evidence that firearms flow from less-regulated areas to more-regulated areas. The UN Commission on Crime Prevention and Criminal Justice (hereafter the UN Commission) explicitly linked access to firearms to death and injury and acknow164


ledged the important role of domestic legislation in controlling the flow of guns from less-regulated to more-regulated areas.22 Second, a society that discusses and then implements gun-control measures begins to internalize a value that rejects violence.23 As indicated, some countries have made their domestic laws more stringent and added more regulation on civilian possession of arms. However, it is interesting to note how this issue, i.e. an intrinsically domestic one, has come to permeate the international arena. How did regulation of civilian gun possession attain prominence in this arena, and in which international forum? This will be discussed in the next section, which will show that the debate about civilian possession within the UN was essential to fostering awareness of it at the international level.

The UN: the prime site for norm building The UN was the prime site for potential international norm development regarding civilian gun ownership. For over a decade, the UN, principally through the work of the UN Commission, has sought to stress the importance of setting up standards to overcome the absence of harmonization of regulations among countries. The 1991 Guidelines for International Arms Transfers, the first document to mention this topic, sets out that states should identify which arms are permitted for civilian use and which may be used or possessed by the military and police forces.24 The mid-1990s was a period of ebullient activity within the UN for smallarms control in general, starting with the explicit call by Secretary-General Boutros-Boutros Ghali in January 1995 in the Supplement to an Agenda for Peace25 for states to focus action and research on small arms. This was followed by the creation of the Panel of Governmental Experts on Small Arms, and its first report in 1997 (the 1997 Panel Report), at its fifteenth meeting, on 9 May 1997, the UN Commission approved for adoption by UNECOSOC a revised draft resolution entitled Firearm Regulation for the Purpose of Crime Prevention and Public Health and Safety.26 This resolution embodies the important components for the development of the norm on civilian gun ownership, calling on states to apply regulatory approaches to the civilian use of firearms. The principles enshrined in this resolution still remain key guiding principles for the construction of an international norm on civilian possession: “In the medium term, supportive States can work to bring their laws and policies into conformity with the recommendations laid out in the 1997 Resolution of the UN Commission of Crime Prevention and Criminal Justice.”27 The work of the UN Commission was instrumental in including the topic of firearm regulation in the UNECOSOC agenda, starting a process of collection of comparable information on firearm regulation among states. Consequently, the Secretary-General was called to seek views of member states, institutes comprising the UN Crime Prevention and Criminal Justice Program network, relevant 165


UN entities and inter-governmental and non-governmental organizations on regulatory approaches. In addition, there was a vigorous process of cooperation between the UN Commission and the Panel of Governmental Experts on Small Arms, and with the World Customs Organization, to review international customs practices relating to the movement of firearms for civilian purposes and worldwide trends in firearm smuggling. This included such matters as the processing of import and export licensing, monitoring, standard protocols (including a common import and export certificate), and an advance notification system, with a view to advising the UN Commission on the effectiveness of controls on the international movement of firearms. The commission recommended the development of the first international legally binding instrument to address the import, export and intransit movement of firearms as part of the Convention on Transnational Organized Crime, the Firearms Protocol, analyzed in this study. The UN Commission began to include an item entitled “Measures to regulate firearms” in its annual agenda, and this resulted in the first international study on firearms regulation.28 The governments of Japan and Canada were central in enabling this project.29 From the beginning, the study’s team decided to focus on civilian-owned firearms. There was an active process of cooperation and information exchange engendered by the UN with many relevant institutions, including: Interpol; the World Customs Organization, which provided data on the number of firearms seized by customs in its member states and made useful comments on the further development of the database on the regulation of firearms; the Inter-American Drug Abuse Control Commission (CICAD) of the OAS; the Central American Security Commission, which elaborated a draft regional agreement for mutual legal assistance with respect to illegal trafficking in weapons; and various NGOs active in the field of firearm regulation, which contacted the UN Commission with regard to the collection and provision of information on the regulation of firearms. A number of inter-governmental organizations and other entities dealing with the regulation of firearms either requested information on the subject or made their own documentation available to the UN Secretariat.30 The study provided the first international comparative description of the levels of firearm-related problems and the national and international efforts being made to regulate firearms and to reduce those problems.31 The core findings of the study are as follows: •

• •

Transnational illicit trafficking in firearms is a serious concern of Member States, contributing to unacceptable levels of homicide, other violent crime, suicide and accidents involving the use of firearms, resulting in tragic harm to victims within the Member States; There are established links between trafficking in illegal firearms, other serious crime and transnational organized criminal networks; Import and export controls on firearms are not sufficient by themselves to prevent illicit trafficking in firearms; 166


•

• •

The absence of effective firearm regulation in one Member State can undermine not only the regulatory efforts but also the effective governance of other Member States; The manufacture of and trade in firearms for civilian use require effective domestic regulation and international cooperation and control; Effective domestic regulation of firearms requires cooperation between all levels of government, law enforcement agencies, business, the media and citizens to promote crime prevention, public health and the safety and security of individuals.32

These key findings reveal that by 1997 there was a vigorous process of agenda setting concerning norm development on civilian gun ownership at the international level, mainly brought about by the work of the UN agencies and some like-minded governments like those of Japan and Canada: The study is the first of its kind, and was completed within a fourteenmonth period. The participation in the study of 69 countries representing 70% of world population reflects the level of international concern and willingness to co-operate. The study arrived at a number of interesting conclusions, which have been confirmed and recognized in the international policy work on firearm regulation during the last two years.33 This process utilized the norm-diffusion mechanism of information, followed by expertise development, followed by socialization, as will be demonstrated further in this section and further illustrated in the subsequent section. The next section will examine whether the process occurring within the UN Commission diffused through other institutional settings, and enforced the potential emerging norm in specific regional settings, as in the 2004 Nairobi Protocol. With regard to international norm building, for instance, a fundamental contribution of the commission was the adoption of the Firearms Protocol.

Tracking institutional norm building This section will demonstrate how the potential norm on controlling civilian gun possession weakly diffused through the several regional documents shown in Table 7.1. This will be based on the hypothetical norm presented at the beginning of this chapter, in an effort to evaluate the process of norm building. The same basic procedure will be followed as in other chapters and the same documents are included in Table 7.1. As usual, norm emergence (even if it is weak norm emergence) is assessed through the assessment of the threshold point, with the initial focus being on the inclusion of components of the norm in the 1997 Panel Report and the 1999 Group Report. As seen in Table 7.1, some of the components of the norm on 167

No

No

No

Appropriate penalties and/or administrative sanctions for offences involving the misuse or unlawful possession of firearms

Mitigation of, or No exemption from, criminal responsibility, amnesty or similar programs that individual member states determine to be appropriate to encourage citizens to surrender illegal, unsafe or unwanted firearms

No

No

No

No

No

No


No

Panel Report (1997)

Documents

Appropriate national Yes legislation, administrative regulations and licensing requirements that define conditions under which small arms and light weapons can be acquired, used and traded by private persons

Norm components

No

No

Yes

Group Report (1999)

No

No

No

No

No

No

Yes

Yes

Yes

No

No

Yes

No

No

No

No

No

No

No

No

Yes


Table 7.1 Tracking institutional norm development on civilian gun ownership

No

No

A licensing system, No inter alia, including the licensing of firearm businesses, to ensure that firearms are not distributed to persons convicted of serious crimes or other persons who are prohibited under the laws of the respective member states from owning or possessing firearms

A record-keeping system No for firearms, inter alia, including a system for the commercial distribution of firearms and a requirement for appropriate marking of firearms at manufacture and at import, to assist criminal investigations, discourage theft and ensure that firearms are distributed only to persons who may lawfully own or possess firearms under the laws of the respective member states

No

No

No

No

No

No

No

No

No

No

No

No

No

No

Yes

No

No

No

No

No


civilian possession were incorporated in these two reports. This indicates that, during the height of the period of the UN activity discussed in the previous section, there was at least an incipient process of institutionalization of a potential international norm on civilian ownership. Second, as Table 7.1 indicates, only some components of the potential emerging norm on civilian possession diffused through the African continent. Therefore, the norm did not reach the threshold point of inclusion in one-third of the documents included in the table. Interestingly, this weak institutional norm diffusion pattern up to 2001 is inconsistent with the robust change in state practice regarding the incorporation of laws governing civilian gun ownership into national legislation seen in the years after UN 2001 and with the level of international attention the issue has received: almost 70 percent (69 out of 103) of the states that reported to UNDDA addressed civilian possession in their national reports for BMS 2003.34 Along the lines of the flurry of activities of the UN Commission, the 1997 Panel Report recommends that all states should determine in their national laws and regulations which arms are permitted for civilian possession and the conditions under which they can be used. In addition, the report introduces the postconflict dimension of this question when it advises states emerging from conflict to impose licensing requirements on all civilian possession of small arms and light weapons on their territories. In the same year, 1997, the OAS Convention does not follow the path of normative development being espoused at the UN. Instead, it recalls that member states have their respective domestic laws and regulations in the areas of firearms, ammunition, explosives and other related materials, and states that the convention does not commit member states to enact legislation or regulations pertaining to firearms ownership, possession or trade of a wholly domestic character. In 1998, the same trend can be noticed in the European Code of Conduct and European Joint Action, where there are no clauses relating to the enactment of regulations governing civilian possession of arms. Along the lines of the 1997 Panel Report, the 1999 Group Report calls on states to introduce appropriate national legislation, administrative regulations and licensing requirements that define conditions under which firearms can be acquired, used and traded by private persons. In particular, it advises states to consider the prohibition of unrestricted trade and private ownership of small arms and light weapons specifically designed for military purposes, such as automatic guns (e.g. assault rifles and machine guns). At the same time, the report reiterates that all states should determine in their national laws and regulations which arms are permitted for civilian possession and the conditions under which they can be used. Great variations in national laws regarding which types of arms are permitted for civilian possession and the circumstances under which they can legitimately be owned, carried and used raise difficulties for effective regional or international coordination. Moreover, according to the 1999 Group Report, many states had yet to determine in their national regulations which arms are permitted or prohibited for civilian possession. The 1999 Group Report 170


innovates in advancing that states emerging from conflict must impose or reimpose licensing requirements on all civilian possession of small arms and light weapons on their territories. Among the countries that made substantial efforts in this regard are Croatia, El Salvador, Georgia, Mali, Mozambique and South Africa, among many others. In many other cases, however, implementation of this recommendation appears to have been a low priority or to have proved beyond the capacity of the relevant authorities.35 In 2000, the OSCE Document and the Brasilia Declaration did not adopt any of these recommendations and did not include any mention of regulating civilian possession of guns. Therefore, normative development in the European and Latin American regions did not advance in any way in terms of norm-building processes on civilian possession. As an indicator of the interest of African nations in this regard, the Bamako Declaration, in the same year, calls for the enhancement of the capacity of member states to put in place measures to control the civilian possession of small arms and light weapons. In addition, Bamako prescribes the adoption where they do not exist of the necessary legislative and other measures to establish as a criminal offence under national law the illicit manufacturing of, trafficking in, and illegal possession and use of small arms and light weapons, ammunition and other related materials.36 There is also an appeal to governments, all sectors of civil society and donor agencies for the financial and technical support of national programs for the reintegration of demobilized youths and those in illegal possession of small arms. As seen in the negotiations of the final version of the Program of Action, to be detailed below, the African nations were the most vigorous advocates for the inclusion of a civilian possession clause.37 This is reflected in the 2000 Nairobi Declaration. In its paragraph IV, it sets out to: Encourage a concrete and co-ordinated agenda for action for the subregion to promote human security and ensure that all States have in place adequate laws, regulations and administrative procedures to exercise effective control over the possession and transfer of small arms and light weapons through measures inter alia to: •

•

•

Pursue positive policies and measures to create social, economic and political environments to reduce the resort to arms by individuals and communities; Urge the strengthening, and where they do not exist, the adoption of national laws and regulations and control mechanisms to govern civilian possession of arms; Call on States to co-ordinate and publicize their policies, regulations and laws relating to possession of arms by civilians.

Even though there was a vigorous attempt at norm building within the UN through the work of the UN Commission, the Firearms Protocol negotiated 171


within this institutional framework failed to include any mention of measures on controlling civilian gun ownership, drawing back from the worldwide efforts to harmonize laws and international norm creation on regulating civilian gun ownership. As seen in Table 7.1, the last element of the norm embodies a record-keeping system for firearms, including, among other things, a system for the commercial distribution of firearms and a requirement for appropriate marking of firearms at manufacture and at import, to assist criminal investigations, discourage theft and ensure that firearms are distributed only to persons who may lawfully own or possess them under the laws of the respective member states. The Firearms Protocol is strong in advancing the norm on marking weapons, the last component of the norm on civilian gun possession given in Table 7.1 (see in this regard Chapter 5 on marking). Nonetheless, it neglects to incorporate the component on firearms possession.38 In the same year as the concluding negotiations of the Firearms Protocol, during the negotiation of the final version of the Program of Action, only a few countries bargained for the clause on gun civilian ownership, among them Argentina, Australia, Mali and Switzerland.39 Argentina and Australia were proponents of the prohibition of unrestricted trade and private ownership of small arms and light weapons specifically designed for military purposes. Argentina advocated for the “adoption of steps” and Australia sponsored the provision indicating that the trade in, and private ownership of, fully automatic military assault weapons should be subject to particularly strong restrictions.40 By the same token, Mali advocated the prohibition of unrestricted private ownership of, and trade in, small arms and light weapons, as well as the prohibition of private possession of small arms designed specifically for military purposes, and specifically steps to prevent such weapons from falling into the hands of children. In a slightly different normative tone, Switzerland was in favor of the prohibition of unrestricted trade in, and unrestricted private ownership of, small arms and light weapons without the specification for weapons designed for military purposes. It was the United States that pressed for the complete deletion of the clause on the norm on controlling gun civilian ownership. In its statement after the adoption of the Program of Action, the president of UN 2001, Camilo Reyes, underscored that the conference had provided an invaluable venue for addressing one of the most urgent problems of international peace and security: the illicit trade in small arms and light weapons. He stressed that the national delegations were able to overcome their differences and attain a consensus on all parts of a Program of Action except for two of the most important, for which there was overwhelming support, despite the concerns of “one state.” These two points of contention were controls over private ownership of weapons and the need for the prevention of sales of arms to non-state groups. Reyes emphasized that the states of the region most afflicted by this global crisis, Africa, had agreed only with the most extreme unwillingness to the deletion of language addressing these critical issues. They did so in order to achieve a compromise that would allow all states to adopt the document. As Reyes’ speech made clear, 172


the illicit trafficking of arms is a problem that must be addressed (as the title of the conference demands) in all, and he repeated: “all, its aspects.” And as Reyes stressed, this position was supported by many states outside Africa.41 Nonetheless, the deletion of the norm on regulating civilian gun possession from the Program of Action did not compromise, at least for the Southern African nations (and after 2004, for the nations that signed the Nairobi Protocol), the commitment to continue on the pathway to normative development of restrictions on civilian gun ownership, as the SADC Protocol demonstrates. This document unambiguously articulates the norm spelled out in Table 7.1, echoing the African clamor for norm development during UN 2001. In its article 5, “Legislative Measures,” the SADC Protocol calls for the prohibition of unrestricted possession of small arms by civilians; the total prohibition of the possession and use of light weapons by civilians; the regulation and centralized registration of all civilian-owned firearms in SADC members’ territories; and measures ensuring that proper controls are exercised over the manufacturing, possession and use of firearms, ammunition and other related materials.42 In addition, the SADC Protocol pioneered a clause on transparency and information exchange, in which state parties undertake to develop and improve transparency in firearms accumulation, flow and policies relating to civilian-owned firearms.43 Still in the African continent, the 2004 Nairobi Protocol fully develops the components of the norm as espoused in the ECOSOC resolution upon which the hypothetical norm is built. The Nairobi Protocol is now the most evolved regional instrument on civilian ownership adopted after 2001, robustly advancing the norm in Africa. In its article 2, where the objectives of the protocol are laid out, there is a commitment to “prevent, combat and eradicate the illicit manufacturing of, trafficking in, possession and use of small arms and light weapons in the sub-region.” The Nairobi Protocol contains an article on “Legislative Measures” (art. 3), in which it is stated that: (a) Each State Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its national law the following conduct, when committed intentionally: (iii) Illicit possession and misuse of small arms and light weapons. In addition, (c) States Parties undertake to incorporate in their national laws: (i) the prohibition of unrestricted civilian possession of small arms; (ii) the total prohibition of the civilian possession and use of all light weapons and automatic and semi-automatic rifles and machine guns; 173


(iii) the regulation and centralised registration of all civilian-owned small arms in their territories (without prejudice to Article 3 c (ii)); (ix) the monitoring and auditing of licenses held in a person’s possession, and the restriction on the number of small arms that may be owned . . . Finally, article 5 is entirely dedicated to the “Control of Civilian Possession of Small Arms and Light Weapons” and makes the following commitment: (a) States Parties undertake to consider a coordinated review of national procedures and criteria for issuing and withdrawing of small arms and light weapons licenses, and establishing and maintaining national databases of licensed small arms and light weapons, small arms and light weapons owners, and commercial small arms and light weapons traders within their territories. (b) State Parties undertake to: (i) introduce harmonised, heavy minimum sentences for small arms and light weapons crimes and the carrying of unlicensed small arms and light weapons; (ii) register and ensure strict accountability and effective control of all small arms and light weapons owned by private security companies; (iii) prohibit the civilian possession of semi-automatic and automatic rifles and machine guns and all light weapons. An important development in the debate on civilian gun ownership was the convening of the first meeting exclusively concerned with the international debate on civilian ownership since UN 2001, which was held in Rio de Janeiro, Brazil, in March 2005. States, NGOs and international organizations participated in the International Meeting on the Regulation of Civilian Ownership and Use of Small Arms. It was convened by the Centre for Humanitarian Dialogue, based in Geneva, in collaboration with the Government of Brazil, Viva Rio and Sou da Paz, another NGO working on issues of violence in Brazil. The meeting recognized that progress had been achieved since the UN 2001 in improving national small-arms control legislation, particularly at the national and regional levels, and there was wide recognition of a worldwide trend toward increased national regulation, as suggested by major legislative revisions in at least a dozen countries in the past decade, and by ongoing law-reform efforts in a number of other states.44

Main mechanisms of norm diffusion The case of norm formation on regulating civilian gun ownership presents all of the typical mechanisms of norm diffusion studied here, most prominently hard 174


advocacy, socialization, teaching, discourse, political rhetoric, information, expertise, lobbying and coalition building (see Appendix 1). This is different from the other cases analyzed in this study, which have typically featured just a few of these mechanisms. And yet the norm on regulating civilian ownership failed to become institutionalized (i.e. incorporated in politically and legally binding instruments) at the regional and international levels prior to UN 2001, advancing only within the SADC and the Nairobi Protocols. There were intense processes of hard advocacy from many pro-gun-regulations groups. In addition, there was a visible process of generation of information and knowledge about the different existing gun regulations, mainly promoted by the UN, and there was also a vigorous process of coalition building between the UN and the governments of Japan and Canada, among others. Finally, there were processes of individual advocacy of people within pro-gun-regulation groups, as well as intense lobbying either for or against the norm, although none of these individuals achieved international prominence. This active process did not result in uniform norm diffusion at the international level, mainly due to the successful opposition to the norm by the United States at the Program of Action negotiations, as well as at the regional American level within the OAS Convention. Interestingly, the vigorous norm-building process occurring at the level of the UN, coupled sometimes with shock events in different countries, served to spur the consolidation of the norm in several domestic arenas, as happened in Brazil, Australia, Canada and the UK. This case study is able to accept the first and second hypotheses guiding this study, namely that NGOs and a coalition of like-minded states were important to norm building in this case. In the process of NGOs influencing norm making, as seen in the annex, the influence of the NRA might have been important in sustaining the American position of blocking the development of the norm at the international level. Again, as in the case of brokers, the hypothesis on the importance of like-minded states in the norm building was central in the process of the generation and sponsoring of knowledge, especially, in this case, within Table 7.2 Mechanisms and actors for norm diffusion on civilian gun ownership Main mechanisms Persuasion, individual advocacy, social pressure, socialization, teaching, discourse, political rhetoric, information, expertise, lobbying, coalition building Main non-governmental actors Numerous pro-gun-regulation groups

NRA

Leading norm entrepreneurs None Main governments Canada and Japan Most evolved norms SADC Protocol (Nairobi Protocol – recently)

175


the UN (led by the efforts of Japan and Canada). However, this study lacks a hypothesis that outlines the key role that the UN assumed as a central site for spurring norm-building processes. This case study also rejects the third hypothesis, in which norm entrepreneurs are central to norm building: no individual was central to the norm diffusion processes on this issue. At the international level, the norm on civilian possession of small arms might not have taken hold because of the deletion of the clause on this issue from the Program of Action. Nonetheless, this case study has demonstrated that the norm is strongly developed in several states and in some regional contexts, like Africa. This is confirmed by the evidence of state practice presented at the beginning of this chapter. In contrast to the issue of transparency, where a search produced only four relevant documents, in the case of civilian possession, 124 government statements were found in the period between January and July 2001. This probably indicates that, at that time, states were generally inclined to develop the norm on civilian possession at the international level, only to be blocked by the opposition of the United States. These results coincide with the search for statements and governmental documents dealing with weapons destruction (which is amongst the strongest emerging international norms on small arms), which were found in 123 documents.45 Generally, however, the deletion of the norm on regulating civilian gun possession at the international level from the Program of Action did not jeopardize the development of the norm in several national and regional contexts, like in Southern Africa, in particular, and recently at the Nairobi Protocol region.

176

8 BANNING THE SALE OF WEAPONS TO NON-STATE ACTORS 1

Introduction The prolonged war in Afghanistan in the 1980s resulted in a major arms pipeline being set up by the American Central Intelligence Agency, working through the Pakistan Inter-Service Intelligence. This pipeline provided $8 billion of small arms to the mujahideen fighting against the Soviet forces.2 This classic example of arms transfers to non-state actors during the Cold War and other similar operations are key to understanding the large surplus of weapons present in the world today.3 Generally, states supply arms to non-state actors to advance their own political or economic interests, both covertly or openly. As shown in Chapter 2, this practice was more widespread during the Cold War, and led to the fueling of proxy wars around the world by the superpowers. These ideological motives have disappeared since the end of the Cold War; however, the practice of arms transfers to non-state actors continues today. For instance, the US Iraq Liberation Act of 1998 allowed arms transfers to opposition groups fighting the regime of Saddam Hussein.4 When importing arms, the main source of supplies for non-state actors is foreign governments.5 In regions where international arrangements were negotiated specifically to restrain foreign arms supply, as in Western African with the 1998 ECOWAS Moratorium on Importation, Exportation and Manufacture of Light Weapons, the phenomenon of arms transfers to undesired end-users continues.6 In the European Union area, even though it is proved that small-arms industries would only be mildly affected if they stopped exporting arms to endusers likely to commit human rights violations, the practice continues.7 This case study will examine the failed emergence of an international norm on banning the sale of weapons to non-state actors until UN 2001, and then look at the international debate on this subject, despite the failure of a norm to emerge internationally right up to the present. This chapter examines the search for the emergence of a norm on banning the sale of weapons to non-state actors, which, if implemented, would mean that exporting countries would supply small arms only to governments, either directly or through entities authorized to procure arms on behalf of governments.8 177


The emergence of a failed international norm Lloyd Axworthy, the former Canadian minister of foreign affairs, proposed the elaboration of a global convention prohibiting the international transfer of military small arms and light weapons to non-state actors in December 1998. The purpose of the convention was: to prevent or deny the cross-border transfer of military armaments, such as fully automatic weapons, grenades and their launchers, and shoulderfired and anti-tank and anti-aircraft missiles, to any person or organization outside the legitimate armed forces and security agencies.9 The initial idea to bar the sale of weapons to non-state actors can be found in a statement issued by Axworthy in August 1998, in which he clearly spelled out the idea of a convention on transfers to non-state actors.10 This speech highlighted that the new form of conflicts occurring in the post-Cold War period, mainly intra-state civil wars, used mostly military-style small arms that were the weapons of choice for non-state actors because they were cheap, and easy to transport and conceal. The main elements of the Canadian proposal included the following: •

•

states must adjust national laws and regulations to incorporate and enforce the principle that military small arms and light weapons are not be transferred to insurgents or other non-state actors. a “Settlement of Disputes” article would allow for the investigation of breaches of the prohibition on international transfers to non-state actors. Additional articles could require consultations among state parties to solve problems and call meetings of parties to exchange information and review the operation of the convention.11

The proposal did not take into consideration non-state groups who were arming themselves to fight against repressive governments. Therefore, the first criticism from human rights advocacy groups and researchers was that it might have been insufficiently based in international humanitarian law (IHL). Responding to this concern, Axworthy re-stated the necessity of establishing and observing standards, in the first place, that restrain the transfer of arms to governments likely to violate the rights of their own citizens. Initially, the British, Norwegian and German governments all expressed varying degrees of approval of the Canadian proposal.12 There are many intricacies of any eventual policy that would deal with the banning of the sale of weapons to non-state actors. For example, what happens when the international community wants to encourage transfers, especially to ethnic nationalists whose situation is dire and whose demands are legitimate? At a minimum, the international community can establish standards determining when such transfers are permissible and when they must be stopped at all costs.13 This assumption introduces some important moral components. 178

BANNING THE SALE OF WEAPONS TO NON-STATE ACTORS

How would the international community judge who is to be supplied with weapons or not? And most importantly, who would decide when to stop supplying such weapons? The challenges posed by the creation of an international norm are therefore problematic and probably represent an insurmountable obstacle to norm emergence. However, five years after the adoption of the Program of Action, advocates for the norm call for efforts to be made to establish criteria for permissible transfers from states to non-state actors, for instance, a norm prohibiting the transfer of weapons to groups that are known to commit egregious human rights violations.14 In other words, given the wide availability of weapons already on the ground, emerging norms on small arms cannot only address the arms-supply side, but have to be consonant with already existing human rights and IHL norms. Non-state actors are key actors in contemporary conflicts and have an impact on the lives of millions of people. Therefore, there must be ways for them to be accountable to such norms, as the ways in which they misuse arms constitute a major human security challenge.15 As seen here, an important condition for successful international norm emergence is previously existing diffusion of knowledge about its main tenets. A prominent observer has pointed out that very little is known about the dynamics of holdings, transfers and use of small arms by non-state actors.16 The existing data is incomplete, ambiguous or simply non-existent. Some non-governmental advocates of the development of a norm on banning the sale of weapons to nonstate actors argue that, given the spread of this norm through regional and national laws (to be tested below), as well as the merit of the idea based on historical analysis of such policies in practice, the Canadian treaty proposal deserved support.17 Under international law, some states consider the provision of arms to non-state actors without the permission of the recipient state as illegal. Therefore, Switzerland, for instance, stated that the creation of a convention as proposed by Canada was unnecessary.18 As some states and other actors have posited that already-existing international law would render the formation of such a norm unnecessary, the next section discusses whether existing international law prohibiting arms transfers hinders or fosters the potential international norm-formation process.

The international normative context for norm development How limiting is international law regarding state arms transfers to non-state actors? And how does it bear upon international norm formation, or its failure, in the case examined here? This section discusses some sources of prohibition of or acquiescence to arms transfers that are relevant to enabling or obstructing international norm formation on banning the sale of weapons to non-state actors. Research on norms upholds that there is usually an enabling normative framework sustaining the emergence of a new norm, i.e. previously existing treaties, 179


conventions that bear resemblance to the emerging norm, customary law, or the practice of states, that serves as the supporting background for norm formation. It is relevant to note the sets of norms that already exist and whether they hamper or provide the means for the potential norm seen here to diffuse. There is no fully fledged regime regulating conventional arms transfers, which means that states have significant room for exporting arms according to their own interests. Nonetheless, there is a nascent customary rule of law that constrains arms exporting state practices whose origins lie in existing non-legally binding codes.19 While there are very few legally binding restrictions, there is a growing array of non-legally binding treaties that are increasingly having a constraining effect on small-arms transfers, such as the EU Code of Conduct. There are also legally binding restrictions on small-arms transfers, such as the EU Joint Action. Emanuela-Chiara Guillard sums up the current situation: Norms often find their first expression in a non-binding statement, which, with the passage of time and usage by states, develops into a rule of customary law and is ultimately codified in a treaty . . . while there are currently few explicit prohibitions on transfers of small arms, there are a significant number of customary prohibitions and a growing body of soft law in the form of codes of conduct increasingly limiting transfers.20 In addition, there is also a growing binding practice on all states present in the UN Security Council resolutions that affect state behavior regarding small arms.21 This is especially the case for the more recent practice of imposing arms embargoes and sanctions on non-state groups in places like Rwanda, Angola and Afghanistan (see Chapter 4). By the same token, the practice within the UN Charter in itself represents another important source of limitation on state arms transfers.22 Also within the UN system, given that “child soldier use is endemic among non-state armed groups,”23 the ILO’s 1999 Worst Forms of Child Labor Convention dealing with child labor represented a missed opportunity to make states accountable if they transfer arms to non-state actors that recruit children.24 The opposition of the United States and other states prevented provisions along these lines from being incorporated in the convention.25 This may be rectified by the entry into force on 12 February 2002 of the Optional Protocol to the Convention on the Rights of the Child, which was opened for signature, ratification and accession by General Assembly Resolution A/RES/54/263 of 25 May 2000. This protocol could be used to hold states accountable for arms transfers to nonstate groups who recruit children as soldiers. In its article 4 (1), the protocol states that: “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” At the UN 2001, the United States blocked the inclusion of a clause on banning the transfer of weapons to non-state actors. Ironically, in the aftermath 180


of the terrorist attacks on the World Trade Center and the Pentagon in September 2001, the United States declared that the unchecked supply of small arms and light weapons to terrorists, organized criminals and violent insurgents in regions of conflict around the world is at the heart of the problems associated with small arms.26 This can be confirmed by UN Security Council Resolution 1373, passed in the aftermath of the 9/11 attacks, requesting all member states to refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists: all States shall: (a) Refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts, including by suppressing recruitment of members of terrorist groups and eliminating the supply of weapons to terrorists.27 Despite Resolution 1373, the United States reaffirmed its strong opposition to the norm of banning the sale of weapons to non-state actors, mainly because of the argument in favor of supporting resistance groups fighting against tyrannical governments or oppressed ethnic or religious minorities confronted by genocidal regimes.28 Yet perhaps the most fruitful source of restriction on state arms transfers beyond UN law is human rights law and IHL, with their multiple international treaties regime. These systems of law provide normative restraints on the transfer and misuse of small arms by states and non-state actors. IHL outlines the means and methods of warfare and prohibits the transfer of certain arms either due to their nature or if the transfer will result in misuse by the recipients of the arms. This is enshrined in article 1 of the Geneva Conventions of 12 August 1949, which requires state parties to “respect and ensure respect” for IHL, including refraining from transferring arms if they have knowledge that the arms will be used to violate IHL.29 The UN Sub-Commission on the Promotion and Protection of Human Rights 2004 report, under Barbara Frey, provided several recommendations for protecting human rights in wartime against violations committed with small arms, as well as the many multiple implications of smallarms proliferation for development and public health, for instance. In the report, states are reminded of their need to train their security forces about IHL and international human rights law obligations specifically regarding small arms. The report also advises states to improve the design and enforcement of small arms embargoes to include criminal penalties against violators. It further recommends that women also assume a role in all phases of international policy on small arms.30 The most noteworthy document in recent years embedding small arms in international regulations and human-rights law is the 1998 EU Code of Conduct. In its eight criteria, the code sets out standards of conduct guiding state arms transfers based on human-rights principles. The cornerstone idea behind it is to 181


restrict the transfer of weapons if they are bound to violate human rights in the recipient country. This is enshrined principally in its second criterion, which instructs member states as follows: Having assessed the recipient country’s attitude towards relevant principles established by international human rights instruments, Member States will: (a) not issue an export licence if there is a clear risk that the proposed export might be used for internal repression; (b) exercise special caution and vigilance in issuing licenses, on a case-by-case basis and taking account of the nature of the equipment, to countries where serious violations of human rights have been established by the competent bodies of the UN, the Council of Europe or by the EU. There are therefore several sources of international law constituting a normative context in which the norm on banning the sale of weapons to non-state actors could flourish; however, as will be seen in subsequent sections, the potential international norm failed to diffuse. Nonetheless, if, as apparently seen here, there were other international sources of restraining undesired small-arms transfers to non-state actors, constituting what the literature calls “an enabling normative framework” for norm emergence, why did the idea of creating an international norm on banning the sale of weapons to non-state actors not develop further?

Reasons for creating a norm on banning the sale of weapons to non-state actors Before answering this question, it is initially worth looking at the reasons why the norm in question has been advocated in the first place. Some small-arms researchers have suggested that a clear international law barring the sale of weapons to non-state actors would play a central role in curbing and curtailing dangerous accumulations of small arms. This could be coupled with a process of strengthening international mechanisms and responses to protect people from repressive governments.31 The norm would also help to prevent the post-conflict mismanagement of, and disregard for, international law principles that usually accompany the covert supply of arms. Generally, the development of an international norm on barring the supply of small arms (usually covert) to non-state actors has been advocated to be: one of the most meaningful policies that concerned governments and non-governmental organizations could pursue to curb further dangerous small arms proliferation. Past and continuing practitioners of covert 182


arms supply cannot be expected to endorse the proposal. But for the “group of like-minded states” and NGOs that came together first around the landmines ban treaty, and then the International Criminal Court, this would seem to be a very worthy effort to explore and further develop.32 Despite this, the development of a potential international norm on the banning of the sale of weapons to non-state actors has been significantly curtailed, as it has met opposition from several actors for moral and political reasons since it was first proposed in 1998:33 The proposal has been criticized on a number of grounds. Critics have said that a convention of this type would unjustly deny arms to nonstate actors who might be opposing repressive regimes, while those repressive regimes could legally arms themselves against their citizens.34

Individual entrepreneurship and norm building As we have seen, Lloyd Axworthy was the key norm entrepreneur in advancing a potential international norm on the ban of the sale of weapons to non-state actors. His previous norm-entrepreneurial efforts had been an important part of the successful international landmine campaign, led by Nobel Peace Prize laureate Jody Williams. Axworthy circulated the proposal for a convention to ban the sale of arms to non-state actors in July 1998. At that time, he outlined that Canada was tackling the problem of small-arms proliferation with a threepronged approach, dealing with humanitarian action through peace-building, illicit trafficking and licit trade. The question of supplying arms to non-state actors falls in the third track. For Axworthy, only an integrated three-track approach cutting across the national, regional and international levels would be effective in addressing the global problems associated with small-arms proliferation and availability. He referred to the crucial necessity of the illicit trade being addressed in parallel to the licit trade in small arms. According to him, one of the most important problematic characteristics of the licit trade in small arms was the deliberate sale by governments to non-state actors. Therefore, Canada was investigating ways to address this problem by sponsoring the diffusion of an international norm according to which states should not engage in acts that inappropriately arm non-state actors, either directly or indirectly. This potential international norm is based on the principle that military-style weapons were to be retained only by the legitimate forces of states. Hence, non-state actors should not be armed as if they were armies themselves. In his speech, Axworthy underscored the need to address how non-state actors opposing repressive regimes would arm themselves to carry on their fight for freedom. Generally, Canada does not support the violent overthrowing of 183


repressive regimes; instead it advocates non-violent means for the search for freedom. In addition, Axworthy stressed that most countries already had very strict export controls that would take into consideration elements like whether the recipient country was involved in military hostilities, was under a UN Security Council embargo, or was implicated in human-rights abuses against its own citizens. Therefore, any new convention on banning the sale of weapons to nonstate groups would simply reinforce the positions of countries whose strict export control criteria were already in place.35 Other actors involved in the diffusion of the ban on weapons for non-state actors were researchers who developed and generated knowledge and policy positions concerning the matter. A central researcher was Lora Lumpe, who edited the key work Running Guns: the Global Market in Small Arms, published in 2000 (see Chapter 4).36 This book was among the first volumes to appear advancing the state of knowledge about both the legal and illegal arms traffic and was ground breaking in its generation of knowledge about brokers in particular, and small-arms proliferation in general. It was sponsored by NISAT and PRIO.

Norm diffusion failure This section will demonstrate how the norm on banning the sale of weapons to non-state actors weakly diffused through the several regional documents, as shown in Table 8.1, based on the hypothetical norm adumbrated in the early stages of this chapter, in an effort to evaluate the failure of norm building. The procedure here follows that of the use of a similar table in earlier case studies. As in earlier case studies, norm emergence patterns, weak or strong, are assessed at the international and regional levels through the norm’s appearance in the usual key documents. (However, neither the 1997 Panel Report nor the OAS Convention are relevant to the issues examined in this case study because they are both dated prior to the origins of the idea contained in the original Canadian proposal in 1998.) As Table 8.1 indicates, the potential norm under discussion here was not incorporated in the 1999 Group Report, nor in almost all the arenas seen in the table. Therefore, it shows a weak institutionalization at the international level. As seen in Table 8.1, regionally, the places where an emerging norm seems to take hold – at least to some extent – are in the EU and African contexts. The EU Code of Conduct of 1998 contains no references to banning the sale of weapons to non-state actors. Nonetheless, the most important tenet of this document rests on the establishment of norms regarding more responsible patterns of weapons transfers rooted in international protection of human rights law. At the end of the same year, 1998, the EU Joint Action integrates norm building on banning the sale of weapons to non-state actors at the regional European level, committing member states to supply small arms only to governments, in accordance with appropriate international and regional restrictive arms 184

N/A

Investigation of breaches of the prohibition on international transfers to non-state actors

N/A

N/A

N/A

Adjust national laws and regulations No

No

No

No

No

Yes


N/A

Panel Report (1997)

Documents

Exporting countries will N/A supply small arms only to governments, either directly or through entities authorized to procure arms on behalf of governments

Norm components

No

No

No

Group Report (1999)

No

No

No

No

No

No

No

No

Yes

No

No

No

No

No

No

No

No

No

No

No

No


Table 8.1 Tracking institutional norm development on the ban of sales to non-state actors


export criteria, as provided in particular in the EU Code of Conduct. Under the EU Joint Action, only states are considered legitimate end users. Article 3(b) pledges member states to supply small arms only to governments – either directly or through duly licensed entities authorized to procure weapons on their behalf. The sale of military-style small arms to sub-state or non-state groups is not permitted and the EU member states have renounced this form of military assistance as an instrument in their foreign and security policy.37 This successful norm building in the European context at a legally binding level also diffused within the context of the Bamako Declaration. However, the other documents in question – the Nairobi Declaration, the OSCE Document, the Brasilia Declaration and the SADC Protocol – did not incorporate the norm. The position of the United States regarding a norm on banning the sale of weapons to insurgents mainly rests on the assumption that consistent export control criteria would render such a norm useless. The trade-off in the OSCE Document, as in the Program of Action, was that the United States agreed on the export criteria promoted by the EU provided the clause on banning weapons to non-state actors was removed.38 The Firearms Protocol goes further on hindering the development of the norm at the international level as it does not apply to state-to-state transactions or to state transfers in cases where the application of the protocol would hamper the right of a state party to take action in the interests of national security consistent with the UN Charter. Therefore any state party may claim national security concerns as justification for arms transfers. The Bamako Declaration makes an appeal to the wider international community and, particularly, to arms-supplier countries to accept that trade in small arms should be limited to governments and authorized registered licensed traders. This position of African nations was energetically sustained throughout the final moments of negotiation of the final version of the Program of Action during UN 2001. The African countries were particularly keen on advancing the clause on barring the sale of weapons to non-state actors. On the one hand, it has been pointed out that this enthusiasm was generated by the fact that African nations are those most affected by the illicit traffic of arms. On the other hand, the inclusion of this clause would serve some African regimes particularly well, as some African nations are ruled by dictatorships, and the barring of the sale of weapons to non-state actors would be beneficial to such leaders who would not want to see their positions challenged by well-armed hostile movements. It is important to note, however, that the strongest African advocates of the non-state actors clause were Mozambique, South Africa and Sierra Leone, the first two in particular being stable democracies.39 During the negotiations leading up to the final version of the Program of Action, Brazil and the United States suggested the deletion of the paragraph spelling out the norm on not transferring weapons to non-state actors.40 The United States argued that this provision would hamper activities such as giving military assistance to freedom fighters, to people resisting genocide, or even to a long-time ally such as Taiwan, which is not formally recognized as a state.41 186


It is the view of the US that the proposal to ban transfers of arms to non-state actors is conceptually flawed in that it attempts to attach a moral distinction to a political one – in other words, it assumes all governments are good and all non-state actors are bad. It is flawed in the practical sense because it suggests an easy solution in the creation of a new law or norm against transfers to non-state groups – even though the worst non-state groups currently operating are already under legal prohibitions and yet continue to obtain arms.42 Instead, the Americans posited adherence to basic criteria for arms transfers. In the final statement by the president of UN 2001, Camilo Reyes, after the adoption of the Program of Action, he outlined that the conference has taken a significant step forward in addressing one of the most urgent problems of international peace and security, the illicit trade in small arms and light weapons.43 Nonetheless, he expressed his disappointment over the conference’s inability to agree, due to the concerns of “one state,” on language recognizing the need to develop the norm on preventing sales of small arms to non-state groups. He underscored that the states of the region most afflicted by this global crisis, Africa, had agreed only with the greatest of reluctance to the deletion of proposed language addressing this vital issue relating to the illicit trade in small arms and light weapons. They did so strictly in the interests of reaching a compromise that would permit the world community as a whole to proceed together with some first steps at the global level to alleviate this common threat. Reyes proposed that the non-actors clause could be included at least in the document’s preamble; nonetheless, the American delegation also objected to this idea. Many nations “made impassioned pleas to the United States to accept the two offending paragraphs.”44 In an attempt at brinkmanship, Canada offered the compromise language of “a state has to bear special responsibility when it sends arms to non-state actors.” Canada went further when proposing the deletion of the controversial civilian ownership clause if the United States accepted the non-state actors provision. Nevertheless, this move did not result in any trade-off. The African countries, the strongest advocates of the non-state actors clause, stated that they would acquiesce to American’s demand to delete the clause. Consequently, Canada followed the African lead.45

Reasons for norm-diffusion failure and the absence of norm-diffusion mechanisms The norm on banning the sale of weapons to non-state actors lies at the heart of one of the most contested concepts in international law: the unresolved dilemma between the norm of sovereign territorial integrity and people’s right to selfdetermination. This dilemma has assumed heated prominence in international relations since World War II and has not yet been resolved. Therefore, it is a key factor in the development of a normative standard that presupposes an outcome 187


to this long-unresolved quandary. In addition, as seen in the other case studies, for normative change to happen and norm development to occur, usually a combination of at least two groups of advocates sponsoring the norm is needed. In the case at hand, Lloyd Axworthy was, to an extent, the sole proponent of such norm. Hence, this case study is able to accept the third hypothesis leading this work, which sees individuals as central to norm building. There was a relative absence of the activism of other groups, either non-state groups or like-minded states, to spur the norm to develop throughout the regional and international levels or as a part of state practice. Also, norm-diffusion processes are usually facilitated by a previously existing enabling normative context that expedites norm formation. The literature employed here says that a new norm comes to integrate and resonate with existing normative frameworks. Nonetheless, in the case analyzed here, despite the existence of a normative context, especially within international law, the norm on banning the sale of weapons to non-state actors failed to diffuse more broadly throughout regional contexts and at the international level. In addition, as seen in the other case studies, actors involved in norm diffusion usually utilize at least one mechanism to circulate their idea of normative change. In this present case, however, there is little evidence of a mechanism enabling the norm to diffuse throughout the several channels and through other audiences. It seems that the idea of the norm remained circumscribed in a narrow cycle and failed to advance. Therefore, there was no conspicuous persuasive effort to change other actors’ opinions and existing policies through a variety of mechanisms. The few non-governmental advocates, even though contributing a valuable and informed policy position, remained at the research level, without the next step of active campaigning or engaging in militant efforts to promote normative change. In the cases of the norms on marking weapons, weapons destruction and arms brokering, an active process of coalition building happened across the groups of actors that was essential to the creation of more robust norm-making processes. This was absent in the present case and is key in Table 8.2 Mechanisms for norm diffusion on banning the sale of weapons to non-state actors Mechanisms None Main non-governmental actors None Leading norm entrepreneur Lloyd Axworthy Main government Canada Most evolved norms EU Joint Action

188


explaining norm-diffusion failure. Hence this case study rejects the first and second hypotheses that have non-governmental actors and states as central to norm building, respectively.

Norm emergence since 2001 One of the most recent non-governmental initiatives was the creation of the Consultative Group Process, led by the Biting the Bullet Project, in January 2003, involving several states and NGOs. The purpose of the group is to discuss the controversial issues not included in the Program of Action, especially arms transfers to non-state actors. The group will attempt to influence the negotiations at the UN 2006 Review Conference, which will review progress in the application of the Program of Action. The group advances the belief that notable progress has been made in developing shared understandings among some states about the possible development of a norm on banning the sale of weapons to non-state actors, especially since 2003.46

189

Part 4 FINDINGS AND CONCLUSIONS

9 THE MAKING OF INTERNATIONAL NORMS

Introduction This study has concerned itself primarily with the origins of global norms on small arms. It has shown that, generally, the making of international and regional norms is a powerful indicator of political change. This is particularly true of any norms relating to the control of arms, since arms have always been an intrinsic part of relations among states. A decade ago, there were effectively no norms governing the availability and spread of small arms. But, since 1995, a whole range of emerging norms have started to lay out common understandings in the relations among states regarding this quintessential factor in international relations. In order to examine this phenomenon, the study initially addressed the fundamental shift that took place within the small-arms trade after the end of the Cold War, i.e. the way in which the international arms trade was reconfigured at that time from a handful of (mostly) state suppliers to a multitude of state and nonstate suppliers, both licit and illicit. This change marks a profound shift in the constitutive aspect of the relations among states and their arms that was not properly acknowledged by the multilateral negotiating framework addressing arms transfers. To date, this negotiating framework and the emerging norms regarding small arms have principally addressed arms-supplier networks; i.e. they have focused on the supply side of the arms trade. Even though this is an intensely significant development (in light of the fact that, prior to 1995, no norms existed at all governing the trade in small arms), it does not address most of the new features brought about by the recent changes in the international arms trade. Further to this problem, a pioneer norm entrepreneur dealing with this new international security issue, Michael Klare, highlighted the fact that most of the post-Cold War thinking on controlling the arms trade had been guided by the proliferation/arms-race model,1 according to which arms and technology transfers were dictated by a few major suppliers and a large number of recipients. After the end of the Cold War, this model had largely lost its utility and therefore a new paradigm that better described the realities of the post-Cold War arms trade was needed. Klare therefore developed a new 193

FINDINGS AND CONCLUSIONS

model focusing on diffusion/global violence proliferation. This model states that, in the post-Cold War arms trade, the “diffusion” of arms happens not only among governments, but also to and from private armies and militias, insurgent groups, and criminal organizations. In addition, this pattern of arms diffusion coincides with the fragmentation of societies along ethnic, religious, tribal and linguistic lines. This new small-arms proliferation model suggests that researchers should investigate two main areas: first, the process of diffusion itself, i.e. how arms enter and proliferate in societies; and second, the relationship between small arms and the human propensity for armed violence. The first area requires a systematic effort to locate the principal sources of small arms and to identify arms-trade routes; the second requires empirical studies on the impact of small-arms diffusion and the reasons for the demand for weapons in particular states and societies. Research has been mostly developed in the first area. However, more research and international action and attention in both areas are necessary. It is in terms of this model that the international small-arms multilateral negotiating community now has to think, going beyond the outdated traditional stateto-state arms supply model. To date there has been considerable progress in making norms to address the scourge created by the availability of small arms, although this progress has so far mostly been located at the suppliers’ side of the international small-arms equation. For the study of norms, this means that norms have mainly evolved around the classic state-to-state approach (and not in the new global-governance framework), reflecting the initial frame of the multilateral negotiations as a security question, and not also as a development matter, or as (desirably) a human security one. Thus, even though the UN Program of Action in its preamble pronounces that states are: Gravely concerned about the illicit manufacture, transfer and circulation of small arms and light weapons and their excessive accumulation and uncontrolled spread in many regions of the world, which have a wide range of humanitarian and socio-economic consequences and pose a serious threat to peace, reconciliation, safety, security, stability and sustainable development at the individual, local, national, regional and international levels, the document itself only develops these notions of development and socioeconomic consequences in one paragraph, paragraph 17: States should make, as appropriate, greater efforts to address problems related to human and sustainable development, taking into account existing and future social and developmental activities, and should fully respect the rights of the States concerned to establish priorities in their development programmes. 194

THE MAKING OF INTERNATIONAL NORMS

More norms that go beyond traditional security concerns, fully incorporating the global-governance framework, and that includes human security while also coherently linking security, development, and the socio-economic consequences and public health dimensions of small-arms proliferation will be needed: One thing we need to recognize is that the full scope of our efforts needs to impact on this final moment. This final meeting point of circumstance where a violent act may be perpetrated by an individual armed with a gun. Part of reducing the likelihood of those set of circumstances are supply side approaches – the focus of the vast majority of efforts undertaken in the context of the Programme of Action to date. Without question, these are part of a long term, comprehensive solution to the problem. But they are only a part of the solution, and only part of what is called for in the Programme of Action.2 Consequently, “our way forward broadens beyond what has been the case to date to develop a coherent and comprehensive response to the call in the Programme of Action to simultaneously address demand for small arms.”3 The key for originating more norms on small arms that will comprehensively address armed violence is already partly present within the Program of Action, but is confined only to paragraph 4 of the preamble, which defines states as being: Determined to reduce the human suffering caused by the illicit trade in small arms and light weapons in all its aspects and to enhance the respect for life and the dignity of the human person through the promotion of a culture of peace.

Implications of the rise of the small-arms debate for the study of international relations The current rise to prominence of the debate on small arms on the international security agenda has multiple and multifold implications for scholars in international relations. 1

2

This is an issue that lies at the heart of security relations among states. The right of states and individuals to legitimately carry arms in the way that they find appropriate has been penetrated by political change that now indicates that there might be some limits to this long-established right. The issue also has ramifications for existing, deeply held norms in international relations. The right to possession of small arms and light weapons lies at the heart of a state’s right to self-determination and sovereignty, issues over which numerous wars have been fought down the centuries. The international debate on small arms has significant consequences for these 195


3

4

5

established norms. The creation of new global norms on small arms also has implications for the long-established norm of the right to self-defense, which, like the other two, is enshrined in the UN Charter. The emergence of international norms on small arms is a serious challenge to mainstream international relations theories, especially those of the realist school. Generally, realists find it puzzling that the issue of small arms rose onto the international security agenda in the first place, given that (a) small arms do not represent a threat to the very existence of the states (unlike weapons of mass destruction); and (b) arms are directly related to how states wage war, and their supply and possession are therefore inherently intertwined with the high politics of states and, consequently, surrounded with secrecy, so that usually there is very little civil society influence in this domain: “It is precisely the control over the use of arms that states guard most jealously.”4 The issue of the banning of landmines puzzled realists for the same reason. Generally, the small-arms issue has become firmly established on the international security agenda that is increasingly unfolding even further and will not be precluded by the opposition of some states and pro-gun NGOs. There is now an established, multi-layered, complex international small-arms management framework that includes everything from grass-roots movements to states.5 Just part of this framework was addressed in this book, and there are many more facets of the small-arms question that will become the subject of research in the years to come. Within the development of norms, the way in which an issue is framed, and by whom, define the way in which it will be addressed. The small-arms debate was in its very initial stages framed as a humanitarian issue by those who started the debate. This approach was quickly aborted and it was subsequently addressed as a state-security question.6 Small-arms agreements, to date, have been negotiated mostly by arms-control professionals in the UN First Committee on Disarmament and International Security and coordinated by the UNDDA. But the problem with the UN as a negotiating forum is that it has no place to fully integrate security and development, or security and pressing humanitarian concerns, or how the spread of small arms obstructs development efforts in many parts of the world.7 A fullyfledged global-governance framework on small arms would integrate the UNDDA, and the agencies that are essential for the work on the ground, and had almost no saying in multilateral negotiations so far (and in the making of the Program of Action): the UNDP and the World Health Organization, for instance. Within international organizations and state bureaucracies, the achievement of “development continues to be insulated from any consideration of security issues.”8 In 2004, the UN Secretary-General’s High-Level Panel on Threats, Challenges and Change proposed the creation of a “Peacebuilding Commission” that will arguably address the missing link between security and development.9 This panel affirmed its belief that “the 196


6

United Nations is the only place where the issues of peace, security and development can be addressed together at the global level,”10 but future events may well prove otherwise. This study has shown that norms may have several constituting components. They are not unidimensional, as most of the research on norms implies. This means that emerging norms will probably never evolve uniformly at the international level; but, rather, their components will deepen and take root, with varying degrees of robustness, in the different regional contexts, where agreement is easier to achieve than at the multilateral level. Therefore, although researchers on norms will probably keep referring to “international norms,” of increasing importance will be the power of regional understandings, and therefore of norms that evolve and consolidate faster on the several regional levels (as this study has widely demonstrated). It is also at the regional level that more productive approaches are being made toward tackling the supply-and-demand equation more effectively. All in all, then, profound changes are taking place in international relations, with intense implications on how the making of global norms takes place.

Competing international norms Already existing, strong norms of sovereignty, the right to self-defense and the right to self-determination, dogged the small-arms debate from the start. Any attempts to control the relationship between states and their arms elicited controversy, jealousy and deep-seated state legitimacy questions. The preamble to the Program of Action – the central international document on small arms – enshrines these three norms: 8. Reaffirming our respect for and commitment to international law and the purposes and principles enshrined in the Charter of the United Nations, including the sovereign equality of States, territorial integrity, the peaceful resolution of international disputes, non-intervention and non-interference in the internal affairs of States, 10. Reaffirming also the right of each State to manufacture, import and retain small arms and light weapons for its self-defence and security needs, as well as for its capacity to participate in peacekeeping operations in accordance with the Charter of the United Nations, 11. Reaffirming the right of self-determination of all peoples, taking into account the particular situation of peoples under colonial or other forms of alien domination or foreign occupation, and recognizing the right of peoples to take legitimate action in accordance with the Charter of the United Nations to realize their inalienable right of self-determination. This shall not be construed as authorizing or 197


encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples. However, even the shield of state sovereignty has been penetrated in the last half-century with the establishment of the international human rights protection system.11 This means that even apparently firmly constituted norms may also evolve, and can be highly dynamic, becoming more attuned with new competing political and legal realities. In the case of the small-arms debate, the need is to transcend conventional state-to-state supply concerns and also to focus on issues that facilitate the demand for arms, for two reasons. First, there is a need to tackle the problems caused by the weapons that are already on the ground, circulating as the leftovers from Cold War conflicts. These weapons are often the product of non-state transactions by illicit arms brokers, are usually unlawful weapons and are frequently in the possession of non-law-abiding individuals. Arms availability is a much larger concern than state-to-state transfer. Second, the main international documents on small arms focus principally on the illicit arms trade, as do most of the negotiations at the multilateral level. However, most illegal arms start out as legal arms: Evidence suggests that illegal small arms fall into three broad categories: • •

•

Legally held small arms that are misused by their lawful owner (whether states, organizations or individuals); Legal small arms that are diverted – the “grey” market – sold by legal owners to unauthorized individuals, illegally sold, stolen, or diverted through other means; Illegally manufactured and distributed small arms (although these account for a small fraction).12

The estimated value of the legal trade in small arms is US$4 billion a year, a figure worthy of attention.13 This is one more indicator that the way the issue has been negotiated at the international level still reflects traditionally framed stateto-state concerns and classic arms-control arrangements, and discounts the suppliers’ responsibility for their own legal trade (or for the arms allowed to be possessed legally by individuals). The norms that would encompass the two factors given above and that go beyond traditional state security concerns if consolidated are the control of civilian gun possession (which would address the problem of legal weapons), the control of arms brokering (which would address the problem of weapons already on the ground), and, partly, weapons destruction (also addressing weapons on the ground). In this light, the building of new norms is therefore a fundamental indicator of political change that, in the last decade, has affected a well-established, deeply engrained relationship in the security policies of states: that of states, individuals and their arms. 198


The role of soft law in the origins of norms in international relations An essential part of this study has been the analysis of the origins and emergence of norms embedded not only in their political enabling environments (most of the political science studies on norms), but also in their enabling legal framework. Therefore, the origins of norms have to be understood as being inextricably embedded in a multilayered framework of political and legal contexts. As a result, the examination of soft law has currently come to form a predominant part of the analysis of the origins of norms. As was seen in the present study, soft law, in the form of non-binding instruments, has offered sufficient basis for the formation of opinio juris, emphasizing emerging custom and anticipating the establishment of the content of emerging norms. This can be illustrated by three important documents in the international and regional small-arms framework: the Program of Action (at the international level); and the OSCE Document and Nairobi Declaration (at the regional level). These three examples of soft law were instrumental in the constitution of what are now new global norms on small arms. The Program of Action, the centerpiece of multilateralism on small arms, even though only politically binding, offers the contours for action and research in most parts of the international debate. The two Biennial Meetings of States held so far (BMS 2003 and BMS 2005), convened to consider the implementation of the Program of Action, marked important moments where the international small-arms community, states and non-governmental actors could exchange information and assess the pulse of the development of norms and best practices in the evolving regime of norms on small arms.14 The OSCE Document, a politically binding instrument, facilitated the creation of an embryonic small-arms regime aiming to combat the spread of small arms in the OSCE region, specifically assisting those states with no capacity to comply with the document. In 2003, the OSCE Forum for Security Cooperation, which carries out the provisions set by the OSCE Document, published a Handbook of Best Practices on small arms. This contains a comprehensive set of recommendations on best practices on all aspects of small arms.15 Importantly, the forum also adopted the OSCE Document on Stockpiles of Conventional Ammunition.16 This means that the OSCE member states, signatories of the 2000 OSCE Document, now have a substantial, comprehensive basis for advancing the regional normative framework contained in the document and share a vast amount of information and practice principally on providing advice and assistance regarding the security and management of stockpiles of small arms, the monitoring of their reduction and disposal, the strengthening of border controls to reduce illicit trafficking in small arms, and collection and control programs.17 The 2000 Nairobi Declaration is the single most interesting regional development on small-arms norms. It gave rise to the Nairobi Secretariat on Small Arms, which coordinates all small-arms activities and constitutes a forum for information exchange and development of the principles enshrined in the declaration. 199


After 2004, upon the enactment of the legally binding Nairobi Protocol, as a result of the work of the Secretariat, ministers from member-state signatories to the Nairobi Declaration and the Nairobi Protocol created the Regional Center on Small Arms and Light Weapons (RECSA) during the Third Ministerial Review Conference held in Nairobi on 20–21 June 2005, which will be constituted as an inter-governmental organization to implement the two agreements.18 From the standpoint of the study of norms, this indicates the evolving relation between norms and their institutionalization, with the ultimate formation of an organization in which the norms will be enshrined and implemented. The increasingly globalized and complex international legal system coexists with the bureaucratization of international institutions. When issues are new on the international security agenda and are surrounded by scientific and factual uncertainty, as well as the need for fast response and flexibility in norm creation, legally binding instruments may not be the most suitable response. Prominent observers of these processes have argued that soft law allows for more room for participation by NGOs (an integral part of norm making) than traditional treaty law.19 In the case of small arms, NGOs are inextricably intertwined with the international and regional political and legal norm-making processes, even in many cases being part of multilateral delegations to meetings at the UN. In the landmines case, NGOs were not only instrumental in originating and consolidating the international legally binding treaty-making process, but also in monitoring compliance with the new norm banning landmines. The same observers have noted that soft law is generally enacted and adopted faster due to its generally less constraining nature. As observed in the case of the Program of Action, it took three years for the successful negotiation of this document. In the case of the politically binding International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons, of October 2005, four years passed before the adoption of the document.20 An examination of all the soft-law agreements studied here confirms that soft law can indeed reshape discourses in international politics and create normative covenants.21 Soft law forms of norm making bring increased cooperation to the international legal and political system.22 The existing small-arms documents/ agreements pioneered cooperation in various areas amongst states, as outlined above in the cases of the OSCE Document, the Nairobi Protocol and the Program of Action, for instance. The same patterns of generation of cooperation in the processes of international norm making can be observed in all the other regional instances examined here, such as the relationship between South Africa and Mozambique on cooperation and destruction of small arms in the SADC region (see Chapter 3). From the standpoint of the study of norms, these cases also demonstrate how emerging norms, not yet institutionalized within regimes or treaty law, can perform the powerful role of reshaping states’ interests, as well as modifying state practice, ultimately becoming agents of political change. Therefore, soft law plays a key role in originating new norms and is highly effective in consti200


tuting relations amongst actors in international relations. Even in the case of landmines, many (soft law) UN General Assembly resolutions preceded the adoption of the legally binding Ottawa Convention.23

Whither compliance? The way forward Policy-makers and practitioners find it impractical to examine norms without referring to compliance. Despite the fact that this is not generally the central preoccupation of researchers on norms (and not of this book in particular),24 compliance has occupied center stage in several studies on norms.25 Regarding compliance, there are three groups of states: those who comply, those who do not, and those who do not have the capacity to do so.26 It is with the third group that most of the problems with small-arms spread/demand lie, and it is within this group that most of the work should be concentrated in the future. UNDP and countless NGOs, with assistance from like-minded states, are already doing work in this regard, on the ground, away from the multilateral negotiating capitals of the world, with NGOs in particular setting the bar high to guide state action. In the light of this, it is interesting to observe the evolving nature of the work of small-arms NGOs. The Biting the Bullet Project (currently a coalition between the London-based International Alert and Saferworld, and the University of Bradford) has taken on an essential role by producing the so-called Red Books dealing with small-arms compliance issues, widely cited here.27 The 2005 report shows that, on the one hand, some states have backtracked from their stronger commitments since UN 2001, while on the other hand, there is plenty of evidence of compliance.28 The ban on landmine use, a successfully negotiated multilateral security issue, was creatively dealt with in a separate diplomatic track, resulting in the legally binding Ottawa Convention. Compliance is monitored by an NGO, the ICBL, in its year-survey publication, the Landmines Monitor. If we look at the issue of compliance in somewhat broader terms, then one of the single most fundamental features of the emerging international framework addressing small-arms availability is its diversity: it involves politically and legally binding instruments and a multitude of actors, from grass-roots movements, pro-gun and anti-gun/violence movements, development agencies, NGOs, the arms-manufacturing industry and international organizations, to states. This has been said to represent a maturing of the international system in two ways:29 first, it is evident that today the complex international legal system encompasses not only states but a multitude of other actors, including NGOs, epistemic communities and business entities, among many others; and second, the flexibility provided by compliance with politically binding agreements may be the way forward for a world in constant change brought about by globalization: “While they are not law, such (non-binding) norms have an indispensable place in the modern legal system.”30 In this regard, and in the case of small arms in particular, NGOs have an exceptionally important role to play.31 201


Even though it is often held that civil society in general has a lesser role to play in security questions, such as disarmament and arms management,32 the small-arms case frequently proves just the opposite.33 Civil society actors involved in the international debate on small arms have been assuming an increasingly more vigorous role in not only influencing agenda setting (principally leading up to UN 2001, as the present study demonstrates), but also, and especially after UN 2001, in monitoring or informing about compliance processes, largely through the Red Books produced by the Biting the Bullet Project. Complementary to this, the consistent annual work produced by the Small Arms Survey, as the epistemic community of small arms, coordinates a large international community of researchers and practitioners worldwide and assumes a prominent role in generating information about all aspects of small arms, including compliance: The lack of access to the policy process and the lack of information because of government secrecy in matters of national security can be overcome by creating communities of experts outside of government able to monitor states’ compliance with or violation of desired or established norms of behavior.34

The constructivist research agenda on norms and the norms on small arms The study has examined the way in which, in the last ten years, norms regarding the various aspects of small arms have emerged, and the extent to which they have been established in the policies and practices of states, regions and international organizations. It has also attempted to establish criteria for assessing norm emergence, and to assess the process of norm development by comparing what actually happens in the multilateral level. Table 9.1 sums up the process of assessment of norm development, using the three-tiered method developed and used throughout this study.

Norm entrepreneurs: key to the origins of norms? A central, widely held tenet of the constructivist research on norms, which centers on the role of norm development in shaping states interests, holds that the role of the entrepreneur is a decisive element in norm-building processes. However, norm building nowadays is highly complex and involves much more than this single distinctive factor. Nevertheless, the existence of norm entrepreneurs remains important, especially in focusing attention on new issues, but not as the single distinctively independent impetus for norm-building processes per se. Strong entrepreneurs in the mold of the classic examples in the literature, Henry Dunant (who conceived of and created the International Committee of the Red Cross) and Jodi Williams (Nobel Peace Prize laureate and chief campaigner 202

Very high Very high Very high High Low Low

34 11 32 10 9 2

Degree of internationalization1 and inclusion of norm components within politically and legally binding instruments2

Means of assessment

High (75%) High (48%) High (78%) High (70%) Low (28%) High only in EU states

Changes in state practice3 No⫹ Yes⫹ Yes⫹ No⫹ No⫺ No⫹

Level of international attention4

Notes See relevant chapters for specific references of the data and other empirical evidence. 1 Left-hand column: degree of internationalization through key UN General Assembly resolutions and reports adopted by consensus (ratings: Very high, High or Low). 2 Right-hand column: Inclusion of norm components through examination of key politically and legally binding small-arms instruments (numeric value). This was done in the tables entitled “Tracking institutional norm development,” which appear in each of the case studies. In these tables, I counted the number of times the elements of each norm were included in each of the analyzed documents. The advantages of this approach are the following: 1) The approach has the advantage of capturing and identifying the components of the norm as integrated in and as they spread throughout several regional contexts (other authors have attempted similar approaches. For instance, see Gary Goertz and Paul F. Diehl, “Toward a theory of international norms: some conceptual and measurement issues,” Journal of Conflict Resolution 36(4), 1992, 634–64). 2) It is important to see how the components of emerging norms have entered and spread throughout distinct regional arenas and at the international level. 3) One of the tests for the existence of a norm is in the constancy of rhetorical practices and acceptances of the reasons why norm emergence is possible (for a related discussion, see Toope and Brunnee, op. cit., p. 69). Moreover, the legitimacy of the norm can be upheld if it is accepted by most actors through a process of mutual construction (ibid., p. 74). 3 Notable changes in state practice documented and assessed primarily through new legislation, statements to the UN General Assembly and reports to the Secretary-General and UNDDA (ratings: High or Low). 4 The level of international attention to the emerging norm determined primarily through assessing whether an international instrument has been negotiated (ratings: Yes or No) and, second, if multilateral meetings are being held in order to accelerate the international norm-building process (ratings: ⫺ or ⫹).

Weapons destruction Arms brokering Marking and tracing Civilian gun ownership Transparency in arms transfers Ban of sale to non-state actors

Norms

Table 9.1 The development of global norms on small arms: the three-tiered method of global norm-development analysis


for the ICBL) are exceptional.35 In the case of small arms, Michael Klare and Edward Laurance were fundamental in raising awareness and carrying out an intense process of agenda setting, ultimately redefining the goals and objectives of the entire fields of conventional arms studies and the arms trade. Klare was the first scholar to voice the view that a new paradigm was needed to deal with small arms in particular, publishing extensively on the new debate that he initiated. Laurance was instrumental in being among the first authors to deal with the new question, but also in energizing the debate with governments, especially that of Canada, and in particular in creating the initial Internet-based campaign that became IANSA. After 1997, with the gradual consolidation of the issue of small arms within the international debate, up until the first international conference that dealt with the illicit small-arms trafficking in all its aspects in July 2001, the complex process of norm building accelerated in many areas, which this study examines. However, as the study demonstrates, this central tenet (i.e. the importance of norm entrepreneurs) is less manifest when tested in actual instances of ongoing processes of norm creation and building.36 Usually, what actually makes for a more vigorous norm-building process is the coalition building patterns that develop between at least two of three key groups of actors: states, NGOs and norm entrepreneurs.37 This is seen in the most successful norm-diffusion cases, where there were at least two groups of norm advocates in each. This can also be attested in the successful case of landmines, as the force of the coalition building among a strong norm entrepreneur, the Government of Canada, and the International Committee of the Red Cross, was the formula for successful norm building. The main actors in pioneering the impetus for norm building on the issue of illicit arms brokering were the leading NGOs and independent researchers who started investigating the problems associated with brokering activities in 1995, when it was found that UN embargoes were being systematically violated. The absence of such coalition-building processes in two cases examined here, transparency and banning the sale of weapons to non-state actors, is one factor explaining the weak pattern of diffusion of these two norms. Differently from the case of brokers, there is relative little influence from NGOs on the weak diffusion patterns of the norm on transparency. The efforts of NGO groups in Europe proved to be fruitful in the adoption of the EU Code of Conduct, but this trend did not translate into other regions or other initiatives. The coalition of at least two groups of actors is therefore usually a key recipe for a strong norm-building process. In the case of the failed norm on banning the sale of weapons to non-state actors, for instance, Lloyd Axworthy, who acted as a norm entrepreneur was, to an extent, the sole proponent of the norm.38 There was a relative absence of the activism of other groups, either non-state groups or like-minded states, to spur the norm to develop throughout the various regional arenas and at the international level.

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The origins of norms in a legal and political vacuum Research on norms generally advances the belief that norm-diffusion processes are usually facilitated by a previously existing enabling normative context that expedites norm formation. The new norm comes to integrate and resonate with existing normative frameworks; hence, norms do not appear in a normative vacuum.39 However, in two of the cases examined here, namely the norms on brokers and on weapons destruction, which were actually successful and moved beyond the threshold point, norm building occurred in a vacuum, as no previously existing normative environment existed to account for norm formation. This phenomenon is not accounted for in the literature. Does norm building need a shock event to initiate it? According to the literature, the perception of a crisis or a shock of some kind can work as a crucial factor in precipitating and catalyzing normative change. Catalyzing or breakthrough events, it is claimed, are important for creating space for advocacy work, which may or may not produce norms. However, this feature is absent in most cases analyzed here. Such events are necessary in a way, but are not in themselves enough to result in norm building of any substance. There was not a single shock event that triggered norm building on small arms alone. Instead, there was laborious work from states and non-state actors (hard advocacy40) to bring about the politicization of a particular situation. The only manifestation of such a triggering or catalyzing event for norm emergence was the genocide in Rwanda in 1994. However, this event was followed by hard advocacy, when reports by Amnesty International and Human Rights Watch were published revealing how arms embargoes on Rwanda and Angola, and later on Sierra Leone, Liberia and others, had been violated, and further reports were subsequently published by NGOs and researchers that led to the issue of illicit brokering starting to be addressed by a number of governments.41 Circuitous avenues to global norm building This study generates some propositions about how norms emerge and diffuse in an attempt to outline the theoretical implications of its findings. A central principle it advances is the concept of circuitous avenues to norm building. This implies not distinct phases of norm building but, rather, paths that can occur in many ways: in parallel; simultaneously; one occurring in isolation followed by years of waiting before the next comes along, and not necessarily successively. This also implies not only indirection, but also a winding course of events and influences. This means that norm making is far from being a unidirectional movement and phenomenon, but rather a highly circuitous process. For instance, the norm on civilian possession, which in 2001 was excluded from the international norm framework, by 2006 seems a strong candidate for possible 205


incorporation. The circuitous model also accounts for the increasing enmeshment and connectedness of domestic and regional/international levels in norm building. So far the accounts in the literature, with the exception of Finnemore and Sikkink, have seen these arenas as distinct, static scenes. This simply no longer corresponds to the reality of politics in the globalized world. Agreements and treaties are undoubtedly still negotiated in formal settings in the UN or elsewhere. But before the diplomats have landed back home, there are already huge amounts of correspondence and hard advocacy activity on the Internet and by email, which in particular makes it possible for domestic actors to increasingly operate at the international level. With the advent of the Internet, therefore, and the ever-faster diffusion of information nowadays, it is virtually impossible to distinguish clearly circumscribed arenas in the entangled processes of global norm building. The process of norm making and diffusion is complex and multi-layered and some norms have several components, usually espoused by many actors. This is sometimes the result of different actors endorsing different aspects of these normative questions. A good example is norm development on weapons destruction, which took place on three tracks. One track was the realization that, in post-conflict situations dealt with by the UN, the processes of demobilization and disarmament had to include a component of weapons destruction to galvanize peace processes; the second corresponded to surplus weapons that originated from excess arsenals across the world with the end of the Cold War; and the third track, which developed later, was the destruction of weapons seized in the context of violent crime in cities across the world.42 In summary, therefore, it can be said that there are three underlying elements for success in norm building and diffusion. The first is coalition building of at least two groups of actors43 (one of them ideally being a coalition of like-minded states).44 This is key for larger and broader influence in different negotiating environments. The second is the diffusion of reliable and credible information (ideally by a previously existing or ongoing epistemic community). The third is the existence of at least one international multilateral forum as the site for norm building and at least one or two more regional sites.45 Within this broad tripartite framework, five clear avenues can be identified along which norm creation and development flow. Avenue 1: information generation For norms to emerge, the generation of knowledge is usually the first necessary step.46 This is a key factor in norm building. Norm formation processes first go through a dynamic earlier process of generation of knowledge. In this process, some states may play as important a role as NGOs – it is not always the case that the latter is the most progressive group. There is vigorous interaction between these two groups of actors in the process of norm generation. In many circumstances, governments financially support the publication of books and inter206


national projects that are key to informed norm building. There may be an overlapping of the work of the epistemic community and the work of NGOs, which play an ever-widening complementary role. For norms to emerge and diffuse successfully, usually a coalition between at least two groups of actors needs to be in place.47 Here the role of a previously existing epistemic community can be instrumental to information diffusion. In more advanced stages of norm building and diffusion (as with norms on small arms at the moment), the role of an ongoing and active epistemic community is essential. However, given the globalized character of norm making nowadays, the epistemic community must be transnational.48 Governments across the world can keep turning to the epistemic community for advice and policy guidance. Avenue 2: institutionalization in international and regional organizations For norms to diffuse, it is essential that they are institutionalized and treated as a separate agenda item in at least one international forum and several regional organizations.49 These organizations play a key role in not only enabling coalitions among actors, but also in the crucial role of generating knowledge.50 In addition, regional and international organizations constitute important sites for the progressive development of knowledge.51 Norm building can be consolidated in international and regional organizations. In the case of the emerging norm on brokers in particular, studies carried out and circulated within the UN General Assembly explored the question of brokering thoroughly and constituted a solid impetus for normative development in the complex question of illicit brokering, serving as a concrete set of normative recommendations to UN 2001.52 Avenue 3: negotiation of politically or/and legally binding instruments In most instances, the work of laying out the components of a norm is done prior to the negotiation of politically and legally binding instruments. This will set the standards and will also precisely and substantively delineate the contours for action, with a choice of points of action, secretariats, etc. It will also help to define what exactly the new norm is. Subsequently, the key to norm diffusion is the inclusion of the components of the norm in at least one international and one regional instrument. This is an essential and very real way to provide impetus for norm diffusion throughout the various political and legal settings and within domestic arenas. As extensively demonstrated here, this is one of the chief aspects of global norm building.

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Avenue 4: coalition building by at least two groups of actors As already extensively discussed in the preceding section, such a coalition will in particular have extra power in socializing new actors in further arenas. Avenue 5: norm building in the regional and international arenas This will serve to deepen the ongoing process of norm diffusion and accelerate the integration of the new norm within more regions of the world.53 Usually it is easier to find consensus for new norms at the regional level, as there are fewer countries involved who (usually) share more common interests and realities. Also, the creation of links between these two spheres is needed for a more comprehensive approach to norm diffusion.54 In the seminal 1995 Supplement to an Agenda for Peace – the first international document to call for urgent measures to tackle “light weapons that are actually killing people in the hundreds of thousands”55 – the Secretary-General of the UN stated that progress in the area of weapons of mass destruction and major weapons systems must be followed by parallel progress in conventional arms, particularly with respect to small arms and light weapons, and that “It will take a long time to find effective solutions to this problem.”56 Action and research have indeed taken huge strides in this area, together with the intricate interaction, hard advocacy and work amongst the many actors involved. However, the more-thana-decade-long effort to restrain the spread of small arms and light weapons through robust norms is still in its early stages, as has been demonstrated here. Some of the most robust norms that are emerging only tackle the supply side of the small-arms equation, and will not necessarily and directly contribute to a reduction of the violence that plagues many parts of the world. Many muchneeded norms remain non-existing or underdeveloped. A strong, fully fledged international regime of effective norms to address and halt armed violence and human suffering worldwide still needs many more instances of hard advocacy, commitment and political will as the vital components of a sustained effort that will have to be made for many years to come.

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APPENDIX Activism and norm building – “pro” and “anti” gun NGOs

This appendix briefly outlines the influence of two important NGOs, one “pro” and one “anti” gun controls on the international debate on small arms: Viva Rio, in Brazil, and the National Rifle Association (NRA) in the United States. These particular NGOs are interesting because, first, Brazil represents an excellent illustrative case of recent change toward restrictive gun law; and Viva Rio is an instance of a non-state group influencing a dramatic change in state policies. Second, the NRA also represents a case of influence in a state’s policies, advocating for non-restrictive gun laws in the United States; and this is relevant here because it was due to American opposition that the clause on civilian possession of arms was not included in the Program of Action that came out of UN 2001. Finally, a condensed examination of these two NGOs is a good way to assess the mechanisms of norm diffusion present in these two groups’ advocacy initiatives. The NRA is the most widely known pro-gun group. It defends the right of American citizens to bear arms. The members of the NRA usually combine to form a strong lobby, particularly in the American Congress, using political rhetoric that tends to deride the work of anti-gun groups or other entities.1 The Institute for Legislative Action (ILA) is the lobbying arm of the NRA and was established in 1975.2 Largely based on the American Constitution’s Second Amendment, the NRA views the gun-control movement in the United States as advocates embodying a “moral” opposition to the individual right of selfdefense.3 A powerful example of how an NGO helps to define states’ interests is the work of the NRA during the UN 2001, which helped to exclude the clause on gun civilian ownership of the Program of Action.4 Another instance of how non-governmental groups help to define the interests of states using articulate processes of awareness-raising among the population concerned is the case of the approval of the new gun law in Brazil, the Statute of Disarmament, in 2003, serving as an illustration of how vocal and influential NGOs are with regard to policy-making not only within states, but also internationally. Viva Rio, based in Brazil, is the largest advocacy NGO in Latin America. The results of its work can be seen in the adoption of the Statute which is a sweeping normative change regarding gun control in that country.5 The Statute restricts the possession and sale of arms and has a unique provision for 209

APPENDIX

the marking of ammunition to enable enhanced tracing and record-keeping of illicit weapons. Public-opinion support for the law was 82 percent at the time, and outweighed pro-gun lobby groups in the decision of the Brazilian Congress. Preceding the endorsement of the law by Congress, Viva Rio, in partnership with other organizations, led more than 50,000 people in marches on the streets of Rio de Janeiro. The “Marches for Disarmament” multiplied across the country, aiming at applying pressure on the members of Congress.6 The new law aims at ending an intricate web of legislative attributions and responsibilities within the Brazilian judicial system. For the successful adoption of the Statute, Viva Rio developed its hard advocacy work using two overarching strategies. One was the provision of timely accurate research and information to the Congress in Brasilia. Viva Rio’s Disarmament Program carried out comprehensive policy-oriented research. The other strategy was the mobilization of the population. This process was effected through high-profile campaigning in the streets and on television. Viva Rio was instrumental in informing Brazilian parliamentarians about key provisions that could not be left out of the body of the text of the new gun law, such as definitions of arms brokers and illicit arms brokering, a central issue in controlling illicit trafficking of arms. In addition, the provision for marking ammunition was also proposed by Viva Rio. Viva Rio’s disarmament team went to Brasilia every week to address the members of Congress. Apart from the street marches across Brazil, Viva Rio launched compelling advocacy campaigns in the months preceding the adoption of the Statute, for instance, “Enough! I Want Peace” and “Choose Gun-Free! It’s Your Gun or Me!” This encouraged women to persuade male family members to give up their weapons. Viva Rio has also engaged the powerful influence of the media in Brazil. Celebrities in the entertainment industry used their appeal to promote the message of the campaigns. In addition, the NGO started an innovative approach of integrating real street demonstrations into Brazil’s most popular television shows. These information and hard advocacy activities led to the successful approval of the Disarmament Statute in 2003.

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PREFACE: THE RISE OF SMALL ARMS INTO THE INTERNATIONAL AGENDA – A DEBATE IN THE CONTEXT OF GLOBAL GOVERNANCE AND HUMAN SECURITY 1 This definition is inspired by Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, “International law and international relations theory: a new generation of interdisciplinary scholarship,” American Journal of International Law 92(3), 1998, 367–97. 2 UN, We the Peoples Millennium Forum Declaration and Agenda for Action: Strengthening the United Nations for the Twenty-First Century, A/54/9598, August 2000. 3 UN, We the Peoples: the role of the United Nations in the 21st century, UN, 2000, p. 52. 4 Ramesh Thakur, “A shared responsibility for a more secure world,” Global Governance, 11, 2005, 281–9. Thakur, apart from also claiming that the Westphalian order is outdated, suggests that this is also the case because recent events show that not all states are equal in status, capacity, legitimacy or morality: “The fact that some ‘legitimate’ governments (meaning internationally recognized) are engaged in criminal activities indicated the troubling degree to which the very word has been corrupted” (p. 284). 5 See Martha Finnemore, National Interests in International Society, Cornell University Press, 1996, p. 71. 6 David Meddings, Statement of the World Health Organization to the Second Biennial Meeting of States to Consider the Implementation of the Program of Action, New York, 11–15 July 2005, pp. 2–3. 7 I wish to thank Edward Laurance for bringing my attention to many of these issues. 1 NORMS IN INTERNATIONAL RELATIONS: THE CASE OF SMALL ARMS 1 According the Report of the Panel of Governmental Experts on Small Arms, A/52/298, 27 August 1997, pursuant to para. 1 of General Assembly Resolution 50/70 B of 12 December 1995, small arms are revolvers and self-loading pistols, rifles and carbines, sub-machine guns, assault rifles, light machine guns; and light weapons are defined as heavy machine guns, hand-held under-barrel and mounted grenade launchers, portable anti-aircraft guns, portable anti-tank guns and recoilless rifles, portable launchers of anti-tank missile and rocket systems, portable launchers of anti-aircraft missile systems and mortars of a caliber of less than 100 mm. Ammunition and explosives are cartridges (rounds) for small arms, shells and missiles for light weapons, anti-personnel and anti-tank grenades and landmines.

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2 For the definition of “norms” employed here, see below. 3 In analyzing the intersection between the disciplines of international law and international politics (the constructivist side of the issue), Jutta Brunnee and Stephen Toope, “International law and constructivism: elements of an interactional theory of international law,” Columbia Journal of Transnational Law 39(19), 2001, 20–74 contend that norms emerge from patterns of practice that generate shared understandings. This study will also look at the flip side of this: shared understandings that generate emerging norms and how these shape behavior. 4 Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood, “International law and international relations theory: a new generation of interdisciplinary scholarship,” American Journal of International Law 92(3), 1998, 367–97. 5 See Martha Finnemore and Stephen J. Toope, “Alternatives to legalization: richer views of law and politics,” International Organization 55(3), 2001, 743–58. This article came as a response to a more restricted view of the study of the intersection of law and politics, but illuminating in many other ways, in International Organization 54(3), 2000, in the issue entitled “Legalization and World Politics.” 6 For the most recent account of the role of weapons in conflict, see Small Arms Survey, Small Arms Survey 2005: Weapons at War, Oxford University Press, 2005. A recent comment indicates the importance of this publication in analyzing the role of weapons in conflicts nowadays: Peacekeeping missions in Monrovia in 2003, and now Darfur, have brought me face-to-face with the carnage caused by small arms and light weapons. I have witnessed how the flow of arms and ammunition to conflict areas undermines international efforts to assist civilians and restore peace. The Small Arms Survey 2005 provides essential information that will help us tackle these problems more effectively. (Major-General F.O. Okonkwo, force commander, African Union Mission in Sudan (AMIS) and former force commander, ECOWAS Mission in Liberia (ECOMIL), online, available at: www.oup.co.uk/isbn/0-19-928085-1).

7

8

9

10 11

For a portrait of the staggering violence in a “country at peace,” see Maria Fernanda Peres, Firearm-related Violence in Brazil: Country Report, Center for the Study of Violence of the University of Sao Paulo, 2004. Brunnee and Toope, op. cit., in posing forward-looking questions for the disciplines of international politics and law, suggest that a deeper understanding of the role of NGOs in regime building is necessary and also that a general understanding of this disciplinary crossroads would benefit case studies of contemporary change. This is what the present study will attempt to do. See Elke Krahmann, “Conceptualizing security governance,” Cooperation and Conflict 38(1), 2003, 5–26. Krahmann examines the enlargement of the notion of security from states to societies leading to differentiation of security policy arrangements since the beginning of the 1990s with the growing influence of NGOs. She calls for a new theoretical perspective to understand the emerging security system. For this account and for an authoritative scholarly explanation of the emergence of landmines as a topic of concern to states and other actors, see Richard Price, “Reversing the gun sights: transnational civil society targets landmines,” International Organization 52(3), 1998, 613–44. Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, December 1997. For a discussion of knowledge on small arms preceding norm building, see Keith Krause, “Norm-building in security spaces: the emergence of the light weapons problematic,” GERSI/REGIS Working Papers, 2001. For the analysis of small arms

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13

14 15 16 17 18 19

20

21

22 23 24 25

26 27 28 29

within a global public policy framework, see Edward Laurance and Rachel Stohl, Making Global Public Policy: the Case of Small Arms and Light Weapons, Small Arms Survey, 2002. Other authors have also taken this approach. For instance, Alice Ackerman, “The prevention of armed conflicts as an emerging norm in international conflict management: the OSCE and the UN as norm leaders,” Peace and Conflict Studies 10(1), 2003, 1–14, examines the rise of conflict prevention as an emerging norm in international conflict management. In particular, Ackerman focuses on the role of the OSCE and the UN as the chief actors in the promotion of this norm. Dinah Shelton (ed.), Commitment and Compliance: the Role of Non-binding Norms in the International Legal System, Oxford University Press, 2003. Also particularly relevant to the present argument, see Richard Price, “From politics to law: emerging customary norms and anti-personnel landmines,” in Christian Reus-Smit (ed.), The Politics of International Law, Cambridge University Press, 2004, pp. 106–30. Shelton, op. cit., p. 1. Ibid., p. 11. Ibid., pp. 12–15. Small Arms Survey, “Moving from action to words: small arms norms,” Small Arms Survey 2003: Development Denied, Oxford University Press, 2003, p. 219. Kenneth W. Abbott and Duncan Snidal, “Hard and soft law in international governance,” International Organization 54(3), 2000, 421–56. UN General Assembly, 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, A/Res/55/255, 8 June 2001. UN General Assembly, The Program of Action to Prevent, Combat, and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, issued as part of the Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, New York, 9–20 July 2001, A/CONF.192/PC/15, 2001. George Washington Journal of International Law and Economics Staff, Guide to International Legal Research, 3rd edn, Butterworth Legal, 1998; 4th edn, 2003; Shabtai Rosenne, Practice and Methods of International Law, Oceana, 1984; Morris L. Cohen et al., How to Find the Law, 9th edn, West, 1989, pp. 450–95. Thomas Buergenthal and Harold Maier, Public International Law in a Nutshell, 2nd edn, West, 1990, pp. 22–3. Christine Chinkin, “Normative development in the international legal system,” in Shelton, op. cit., p. 42. Paul C. Szasz, “International norm-making,” in Edith Brown Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions, UN University Press, 1992, chapter 2. Brunnee and Toope, op. cit., suggest that “the description of evolving regimes presupposes that norms are not static artifacts, but that they evolve over time and that law emerges on a continuum from mere interaction to an acceptance of binding obligation” (p. 47). I wish to thank an anonymous reviewer for suggesting this point. Szasz, op. cit. Chinkin, op. cit., p. 22. The literature researching norms will be outlined further. But note that it has been suggested that “the importance of the tactic of this literature to focus mostly on explaining relatively successful norm development – to show that progressive change is possible . . . provides us with sharper analytical tools to analyze failures”

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31 32

33

34 35

36 37

38

(Comments of the chair, Professor Richard Price, to the Panel on Learning and Normative Change by States and International Institutions, International Studies Association Meeting, Montreal, 2004). United States Report to the Second Biennial Meeting of States on the Implementation of the United Nations Program of Action for Small Arms and Light Weapons, delivered by the deputy director for the Office of Weapons Removal and Abatement, United States Department of State, 11 July 2005. For a fascinating account of Bout’s activities, see Peter Landesman, “Arms and the man,” New York Times Magazine, 17 August 2003. For a compelling examination of the role of norms in changing state behavior, see Martha Finnemore, National Interests in International Society, Cornell University Press, 1996. This book was a powerful guide throughout my research for this project, and the idea Finnemore advances that “states are embedded in dense networks of transnational and international social relations that shape their perceptions and their preferences in consistent ways” has permeated my approach in examining small arms. Jeffrey W. Legro, “Which norms matter? Revisiting the ‘failure’ of internationalism,” International Organization 51(1), 1997, 31–63; Paul Kowert and Jeffrey W. Legro, “Norms, identity, and their limits: a theoretical reprise,” in Peter J. Katzenstein (ed.), The Culture of National Security, Columbia University Press, 1996. Robert Keohane, After Hegemony, Princeton University Press, 1984; Friedrich Kratochwil and John G. Ruggie, “International Organization: a state of the art on an art of the state,” International Organization 40(4), 1986, 753–75. A.P. Cortell, and J.W. Davis, “When norms clash: international norms, domestic practices, and Japan’s internalization of the GATT/WTO,” Review of International Studies 31(1), 2005, 3–25; A. Hasenclever, “The power of human rights: international norms, communicative action, and political change in developing nations,” International Studies Review 7(1), 2005, 63–6; Price, 1998, op. cit.; Finnemore, op. cit.; Janice E. Thomson, “State practices, international norms, and the decline of mercenarism,” International Studies Quarterly 7, 1990, 23–47; Nina Tannenwald, “The nuclear taboo: the United States and the normative basis of nuclear non-use,” International Organization 53(3), 1999, 433–68. An exception is: K. Hirata, “Beached whales: examining Japan’s rejection of an international norm,” Social Science Japan Journal 7(2), 2004, 177–97. Finnemore, 1996, for instance, challenges this mainstream view, also presenting case studies. The present study mainly uses three bodies of literature in international relations: the literature on international security, that on the emergence and diffusion of norms, and finally that on the role of actors in normative change. Alexander Wendt, Social Theory of International Politics, Cambridge University Press, 1999; John G. Ruggie, Constructing the World Polity: Essays on International Institutionalization, Routledge, 1998; Ted Hopf, “The promise of constructivism in international relations theory,” International Security 23(1), 1998, 171–200; Mark Laffey and Jutta Weldes, “Beyond belief: ideas and symbolic technologies in the study of international relations,” European Journal of International Relations 3(2), 1997, 193–237; Emanuel Adler, “Constructivism in international relations: sources, contributions, debates, and future directions,” in Walter Carlnaes, Thomas Risse and Beth Simmons (eds), Handbook of International Relations, Sage, 2002. Finnemore, op. cit.; Kratochwil and Ruggie, op. cit.; Volker Rittberger, Andreas Hasenclever and Peter Mayer, “Interests, power, knowledge: the study of international regimes,” Mershon International Studies Review 40(2) 1996, 177–228; Audie Klotz, Norms in International Relations: the Struggle Against Apartheid, Cornell University Press, 1995; Richard Price, “A genealogy of the chemical

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43 44 45

46 47 48 49 50 51 52 53

54 55 56

weapons taboo,” International Organization 49(1), 1995, 73–103; Robert Herman, “Identity, norms and national security: the Soviet foreign policy revolution and the end of the Cold War,” in Katzenstein, op. cit.; Price, 1998, op. cit.; Thomas Risse, Stephen Ropp and Kathryn Sikkink (eds), The Power of Human Rights: International Norms and Domestic Change, Cambridge University Press, 1999; Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics, Cornell University Press, 1998. Ethan Nadelmann, “Global prohibition regimes: the evolution of norms in international society,” International Organization 44(4), 1990, 479–524. Ann Florini, “The evolution of international norms,” International Studies Quarterly 40, 1996, 363–89. One of the foundational works for this approach is Robert Axelrod, “An evolutionary approach to norms,” American Political Science Review 80, 1986, 1095–111. Jeffrey T. Checkel, “The constructivist turn in international relations theory,” World Politics 50, 1998, 324–48; Jeffrey T. Checkel, “International norms and domestic politics: bridging the rationalist-constructivist divide,” European Journal of International Relations 3, 1997, 473–95. Gregory A. Raymond, “Problems and prospects in the study of international norms,” Mershon International Studies Review 41, 1997, 205–45. Martha Finnemore and Kathryn Sikkink, “International norm dynamics and political change,” International Organization 52(4), 1998, 887–917. Tannenwald, op. cit. This definition derives from a consensus definition in the literature used by the authors in Katzenstein, op. cit., to describe collective expectations for the proper behavior of actors with a given identity. This was the first book to gather all the most influential authors representative of the school interested in looking at the role of norms in defining states interests. According to this group of authors, in some situations, norms operate like rules that define the identity of an actor, thus having “constitutive effects” that specify what actions will cause relevant others to recognize a particular identity. In other situations, norms operate as standards that specify the proper enactment of an already defined identity. In such instances, norms have “regulative” effects that specify standards of proper behavior. Norms thus either define (or constitute) identities or prescribe (or regulate) behavior, or they do both. See also Raymond, op. cit., pp. 213–15. Here I borrow from Tannenwald, op. cit., p. 435. Raymond, op. cit., p. 214. Stephen Krasner, “Structural causes and regime consequences: regimes as intervening variables,” in Stephen Krasner (ed.), International Regimes, Cornell University Press, 1983. Respectively, Finnemore and Sikkink, op. cit., and Legro, op. cit. Finnemore and Sikkink, op. cit. Ibid., p. 892. Florini, op. cit.; Price, 1998, op. cit. Socialization “has been defined as the process by which new members come to adopt a society’s preferred ways of behaving, has been studied by realist, liberal institutionalist, and constructivist scholars of international politics” (Andrew P. Cortell and James W. Davis, “How do international institutions matter? The domestic impact of international rules and norms,” International Studies Quarterly 40, 1996, 81). Finnemore and Sikkink, op. cit. Nadelmann, op. cit., p. 482. Finnemore and Sikkink, op. cit.; Finnemore, op. cit.; also, Nadelmann, op. cit.; David Lumsdaine, Moral Vision in International Politics, Princeton University Press, 1993; Robert McElroy, Morality and American Foreign Policy, Princeton University Press, 1992.

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64 65 66 67 68 69 70 71 72

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74

75 76

Finnemore, op. cit. Finnemore and Sikkink, op. cit., p. 901. Ibid., p. 900. See Chapter 2 for full details of these. Details of these will be given in each case study. Keck and Sikkink, op. cit.; Price, 1998, op. cit., Raymond, op. cit. As demonstrated above, the emergence of the small-arms issue took place during the 1990s. The end of this decade marked the decision of states to hold the first international conference to address arms illicit trafficking. In the Small Arms Survey database, online, available at: www.smallarmssurvey.org/Database.html. In a search on “Government Statements from 1995 to 1998,” in “Documents of the General Assembly Official Records of the First Committee,” there were 297 statements on some aspect of the small-arms debate. For instance, Richard Price, The Chemical Weapons Taboo, Cornell University Press, 1997. Finnemore and Sikkink, op. cit., p. 908. Florini, op. cit. Andrew P. Cortell and James W. Davis, “Understanding the domestic impact of international norms: a research agenda,” International Studies Review 2(1), 2000, 65–88. Florini, op. cit.; Price, 1998, op. cit.; Raymond, op. cit. Mitsuro Donowaki, “Addressing light weapons and small arms proliferation,” in Malcolm Chalmers, Mitsuro Donowaki and Owen Greene (eds), Developing Arms Transparency: the Future of the United Nations Register, Redwood, 1997, p. 203. Basically all the studies examined here as part of the norms literature are representative of this trend. Keck and Sikkink, op. cit.; Thomas Risse-Kappen (ed.), Bringing Transnational Relations Back In: Non-state Actors, Domestic Structures and International Institutions, Cambridge University Press, 1995. For an analysis of IANSA as a transnational advocacy network, see Suzette R. Grillot, “Small arms, big problems: IANSA and the making of a transnational advocacy network,” paper presented at the International Studies Association Annual Meeting, Chicago, 20–24 February 2001. Keck and Sikkink, op. cit. TANs are defined as networks of scientists and experts whose professional ties and shared causal beliefs underpin their efforts to influence policy. Others are networks of activists, distinguishable largely by the centrality of principled ideas or values in motivating their formation. TANs, motivated by the centrality of principled ideas as their distinctive feature, can perform their role in diffusing ideas by creating political spaces, transforming discourse positions and searching for favorable institutional venues. Audie Klotz, “Transnational activism and global transformations: the anti-apartheid and abolitionist experiences,” European Journal of International Relations 8(1), 2002, 49–76. Klotz explores how transnational abolitionists and anti-apartheid activists in two different centuries mobilized across national boundaries, examining the profound normative change that resulted. Cortell and Davis, 2000, op. cit.; Neta Crawford, “Decolonization as an international norm,” in Laura Reed and Carl Kaysen (eds), Emerging Norms of Justified Intervention, American Academy of Arts and Sciences, 1993; Klotz, 1995, op. cit. Most notably, Cortell and Davis, 2000, op. cit. For a case that examines when domestic practices come to conform with international practices, see Elizabeth H. Boyle, Barbara J. McMorris and Mayra Gómez, “Local conformity to international norms: the case of female genital cutting,” International Sociology 17(1), March 2002, 5–33.

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77 Most notably, Finnemore and Sikkink, op. cit. 78 Benin, Burkina Faso, Cape Verde, Côte d’Ivoire, Gambia, Ghana, Guinea, GuineaBissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone and Togo. These states have since renewed their commitment. 79 Finnemore and Sikkink, op. cit.; Raymond, op. cit.; Florini, op. cit. 80 Finnemore and Sikkink, op. cit., p. 906; Raymond, op. cit.; Florini, op. cit. 81 Ibid. 82 Price, 1998, op. cit. 83 Finnemore and Sikkink, op. cit., p. 908. 84 Florini, op. cit.; Price, 1998, op. cit.; Raymond, op. cit. 85 Finnemore and Sikkink, op. cit., p. 897. 86 Ibid., p. 909. 87 Price, 1998, op. cit., p. 622. 88 Peter Haas, “Epistemic communities and international policy coordination,” International Organization 46(1), 1992, 1–35. 89 Ibid., p. 27. 90 For instance, Florini, op. cit., p. 375. 91 Among the pieces in this vast literature, some of the most relevant to my research on small arms were Aaron Karp, “Arming ethnic conflict,” Arms Control Today, September 1993; Krause, op. cit.; Ann-Marie Clark, “Non-governmental organizations and their influence on international society,” Journal of International Affairs 48(2), 1995, 507–25; Jutta Joachim, “Framing issues and seizing opportunities: the UN, NGOs, and women’s rights,” International Studies Quarterly 47(2), 2003, 247–74; Ann-Marie Clark, Elizabeth J. Friedman and Kathryn Hochstetler, “The sovereign limits of global civil society: a comparison of NGO participation in LIN World Conferences on the environment, human rights and women,” World Politics 51, 1998, 1–35; J. Clark, “Policy influence, lobbying and advocacy,” in M. Edwards and D. Hulme (eds), Making a Difference: NGOs and Development in a Changing World, Earthscan, 1992; Jackie Smith and Ron Pagnucco with George A. Lopez, “Globalizing human rights: the work of transnational human rights NGOs in the 1990s,” Human Rights Quarterly 20, 1998, 379–412; Peter J. Spiro, “New global communities: nongovernmental organizations in international decision-making institutions,” Washington Quarterly 18(1), 1994, 45–56. Price, 1998, op. cit.; Krause, 2001, op. cit. 92 Karp, op. cit. 93 Some authors do focus on the role of middle powers: Christine Ingebritsen, “Norm entrepreneurs: Scandinavia’s role in world politics,” Cooperation and Conflict 37(1), 2002, 11–23; Ronald M. Behringer, “Middle power leadership on the human security agenda,” Cooperation and Conflict 40(3), 2005, 305–42; Kenneth R. Rutherford, Stefan Brem and Richard A. Matthew, Reframing the Agenda: the Impact of NGO and Middle Power Cooperation in International Security Policy, Greenwood, 2003. 94 Finnemore and Sikkink, op. cit., p. 895. 95 Finnemore and Sikkink, op. cit.; Florini, op. cit.; Price, 1998, op. cit.; Keck and Sikkink, op. cit.; Rodger A. Payne, “Persuasion, frames and norm construction,” European Journal of International Relations 7(1), 2001, 37–61. 96 Raymond, 1997, op. cit., p. 231. 97 Finnemore and Sikkink, op. cit.; Price, 1998, op. cit.; Crawford, op. cit.; Klotz, 1995, op. cit.; Thomson, op. cit. 98 Finnemore and Sikkink, op. cit.; Florini, op. cit.; Price, 1998, op. cit.; Keck and Sikkink, op. cit.; Klotz, 1995, op. cit.; Price and Tannenwald, op. cit. 99 Haas, op. cit., introduction; Keck and Sikkink, op. cit. 100 Checkel, 1997, op. cit., pp. 473–95; Cortell and Davis, 2000, op. cit.; McElroy, op. cit.

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101 102 103 104 105 106

Finnemore and Sikkink, op. cit. Risse-Kappen, op. cit. Payne, op. cit. Finnemore, op. cit. Ibid. Keith Krause, “The challenge of small arms and light weapons,” unpublished paper, May 1998; Price, 1998, op. cit.; Keck and Sikkink, op. cit.; Haas, op. cit. 107 Price, 1998, op. cit., p. 621. 2 NORM-BUILDING PROCESSES IN THE EVOLUTION OF THE SMALL-ARMS QUESTION IN THE INTERNATIONAL AGENDA 1 For a detailed account of the emergence of the term, see Kanti Bajpai, “Human security: concept and measurement,” Kroc Institute Occasional Papers 19(1), 2000, 64 pp. See also, Bonn International Conversion Center (BICC), Conversion Survey 2001: Global Disarmament, Demilitarization and Demobilization, Nomos Verlagsgesellschaft, 2001. The literature on the enlargement of the concept of security is vast. Of recent interest for the purposes of this study, though, is Gerd Oberleitner, “Human security: a challenge to international law?” Global Governance 11(2), 2005, 185–203, which lies at the intersection of international law and politics. 2 Keith Krause, “Norm-building in security spaces: the emergence of the light weapons problematic,” GERSI/REGIS Working Papers, 2001, p. 13. 3 Oberleitner, op. cit. For a more skeptical view, but also connecting the concept with evolving norms, see Edward Newman, “Human security and constructivism,” International Studies Perspectives 2(3), 2001, 239–51. 4 Paul Heinbecker, “Human security: the hard edge,” Canadian Military Journal, Spring 2000, 11–16. Heinbecker is assistant deputy minister, global and security policy, in the Canadian Department of Foreign Affairs and International Trade. 5 Author’s interview with Edward Laurance, Monterey, USA, 28 October 2005. 6 Jutta Brunee and Stephen Toope, “Canada and the use of force: reclaiming human security,” International Journal 59(2), 2004, 247–60. 7 Keith Krause, “The key to a powerful agenda, if properly delimited,” Security Dialogue 35(3), 2004, 367–8. 8 Already cited in Chapter 1 is an entire volume of International Organization 54(3), 2000 entitled “Legalization in World Politics.” The work of the authors in this publication is the culmination of almost a decade of study in this particular area. 9 I wish to thank Edward Laurance for his contribution here. 10 Antonia Chayes and Dinah Shelton, “Commentary on multilateral arms control,” in Dinah Shelton (ed.), Commitment and Compliance: the Role of Non-binding Norms in the International Legal System, Oxford University Press, 2003, p. 523. 11 Antonia Chayes and Abram Chayes, “The UN Register, transparency, and cooperative security,” in Malcolm Chalmers, Owen Greene, Edward J. Laurance and Herbert Wulf (eds), Developing the UN Register of Conventional Arms, University of Bradford, 1995, p. 199. 12 According to BICC, Conversion Survey 1997: Global Disarmament and Disposal of Surplus Weapons, Oxford University Press, 1997, pp. 60–5, surplus weapons are defined as weapons that are officially declared excess to military requirements by a state’s political or military authorities. Few governments officially declare what they consider to be “surplus” arms. They usually put them in storage without deciding for years, sometimes, what to do with them. The BICC regards the “surplus” weapons problem as one of the main features of the unrestricted availability of small arms and light weapons. 13 ICRC, Arms Availability and the Situation of Civilians in Armed Conflict, ICRC,

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15 16

17

18 19 20

21 22 23 24 25 26 27 28 29

1999, p. 18. See also Abdel F. Musah and Robert Castle, “Eastern Europe’s arsenal on the loose: managing light weapons flows to conflict zones,” BASIC Occasional Papers on International Security Issues, no. 26, May 1998. Among the authors who analyzed these issues in the aftermath of the Cold War are R.T. Naylor, “The structure and operation of the modern arms black market,” in Jeffrey Boutwell, Michael Klare and Laura W. Reed (eds), Lethal Commerce: the Global Trade in Small Arms and Light Weapons, American Academy of Arts and Sciences, 1995, pp. 44–57; Christopher Smith, “Light weapons and the international arms trade,” in UNIDIR, Small Arms Management and Peacekeeping in Southern Africa, UNIDIR, 1996, especially pp. 14–19; Christopher Smith, “Light weapons and ethnic conflict in South Asia,” in Boutwell et al., op. cit., pp. 61–80; Michael Renner, “Small arms, big impact: the next challenge of disarmament,” World Watch Papers, no. 137, October 1997, pp. 32–3; Brian Wood and Elisabeth Clegg, Controlling the Gun-Runners: Proposals for EU Action to Regulate Arms Brokering and Shipping Agents, NISAT Briefing, February 1999, online, available at: www.nisat.org; Susannah Dyer and Geraldine O’Callaghan, One Size Fits All? Prospects for a Global Convention on Illicit Trafficking by 2000, BASIC Research Report, no. 99.2, April 1999, p. 20. Michael Klare, “Small arms: the new major weapons,” in Boutwell et al., op. cit., p. 19. Ibid.; Edward J. Laurance and David Mussington, “Preventing the negative consequences of arms buildups: models and options for Canada,” unpublished paper, March 1996, pp. 38–41; Christopher Smith, “The forgotten dimension of the international arms trade,” in Brassey’s Defence Yearbook, Brassey’s Defence Publishers, 1994, p. 282; Aaron Karp, “Arming ethnic conflict,” Arms Control Today, September 1993, 8–9. Smith, 1994, op. cit., p. 282; Lora Lumpe, US Policy on Small Arms/Light Arms Exports, Carnegie Commission on Preventing Deadly Conflict/American Academy of Arts and Sciences, 1998; Edward J. Laurance, “Surplus light weapons as a conversion problem: unique characteristics and solutions,” in Edward J. Laurance and Herbert Wulf (eds), Coping with Surplus Weapons: a Priority for Conversion Research and Policy, BICC Brief, no. 3, June 1995; Klare, op. cit. M.A. Levi and M.E. O’Hanlon, The Future of Arms Control, Brookings Institution Press, 2005. E. Dahinden, “The future of arms control law: towards a new regulatory approach and new regulatory techniques,” Journal of Conflict and Security Law 10(2), 2005, 263–77. “ ‘Epistemic communities’ are channels through which new ideas circulate from societies to governments as well as from country to country” (Peter Haas, “Epistemic communities and international policy coordination,” International Organization 46(1), 1992, p. 27). Krause, op. cit. Boutwell et al., op. cit. Author’s interview with Michael Klare, Amherst, December 2003. Author’s interview with Laurance, op. cit. Boutwell and Klare, op. cit. Author’s interview with Edward Laurence, Geneva, Fall 2002; author’s interview with Klare, op. cit. Lloyd Axworthy, “Now for a new diplomacy to fashion a humane world,” Herald Tribune, 21 October 1998. Edward Laurance, The New Field of Micro-Disarmament: Addressing the Proliferation and Buildup of Small Arms and Light Weapons, BICC Brief, no. 7, September 1996, p. 16. Karp, op. cit., p. 8.

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30 Klare, op. cit., p. 19. 31 For another account of the evolution of the small-arms question, see Edward J. Laurance, “The history of the global efforts to regulate small arms,” paper presented at the Social Science Research Council’s Workshop on International Law and Small Arms Proliferation, February 2002. 32 Michael Klare, “Thriving black market for weapons,” Bulletin of the Atomic Scientists 44(3), April 1988, 16–24. 33 Edward J. Laurance, “The new gunrunning,” Orbis 33, 1989, 225–37. 34 Edward J. Laurance, “Political implications of illegal arms exports from the United States,” Political Science Quarterly 107(3), 1992, 501–33. 35 Karp, op. cit., pp. 8–23. 36 Tara Kartha, “The spread of arms and instability,” Strategic Analysis 16(18), 1993, 1033–50. 37 Christopher Smith, “Diffusion of small arms and light weapons in Pakistan and Northern India,” Defense Studies 20, September 1993, 48–70. 38 Prashant Dikshit, “Proliferation of small arms and minor weapons,” Strategic Analysis 17(2), 1994, 187–204. 39 Stephen D. Goose and Frank Smyth, “Arming genocide in Rwanda,” Foreign Affairs 73(5), 1994, 86–96. 40 Aaron Karp, “The arms revolution: the major impact of small arms,” The Washington Quarterly 17(4), 1994, 65–77. 41 Michael Klare, “Awash in armaments: implications of the trade in light weapons,” Harvard International Review 17(1), 1994–5, 24–8. 42 Greg Mills, “Small arms control: some early thoughts,” African Defence Review 15, 1994, 42–54. 43 Christopher Smith, “Light weapons: the forgotten dimension of the arms trade,” in Brassey’s Defence Yearbook, Brassey’s Defence Publishers, 1994, pp. 271–84. 44 Interview with Laurance, 2002, op. cit. 45 Interviews with Laurance, 2002, and Klare, op. cit. 46 Interview with Laurance, 2002, op. cit. 47 Boutwell et al., op. cit. 48 Jasjit Singh (ed.), Light Weapons and International Security, Pugwash Conferences on Science and World Affairs, British American Security Information Council, Indian Pugwash Society and Institute for Defence Studies and Analyses, 1995. 49 Michael Klare, “Light weapons diffusion and global violence in the post Cold War era,” in ibid. 50 Interviews with Laurance, 2002, and Klare, op. cit. 51 Disarmament Commission, Guidelines for International Transfers in the Context of General Assembly Resolution 46/36 H of 6 December 1991, 7 May 1996. 52 UN Guidelines, para. 28: “The use of small arms and light weapons in conflicts and war has a major bearing on regional and international peace and security and national stability. The alarming dissemination and illicit transfer of such weapons and the serious threat they pose require States to ensure strong and effective supervision of all aspects of trade in such weapons.” 53 UN General Assembly, Report of the Secretary-General, A/51/181, 27 June 1996. 54 UN General Assembly, Supplement to an Agenda for Peace, A/50/60, S/1995/1, 3 January 1995. 55 Ibid., para. 60. 56 Ibid. 57 Ibid., para. 65. 58 UN General Assembly, Report of the Panel of Governmental Experts on Small Arms, Pursuant to Paragraph 1 of General Assembly Resolution 50/70 B of 12 December 1995, A/52/298, 27 August 1997.

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59 Interview with Laurance, 2002, op. cit. 60 See Chapter 3 for the role of coalition of like-minded states in sponsoring the multilateral funding for weapons destruction initiatives and Chapter 4 for the role of some states in sponsoring the financing of knowledge. 61 Other authors have examined coalitions of like-minded states, e.g. Ronald M. Behringer, “Middle power leadership on the human security agenda,” Cooperation and Conflict 40(3), 2005, 305–42. Behringer shows how middle-power states like Canada, Denmark, the Netherlands and Norway applied leadership in examining two cases that challenged American established rights on the Constitution, and two that did not. The former are the cases of the Stand-by High Readiness Brigade for UN operations and that of landmines; and the latter are the International Criminal Court (ICC) and that of small arms and light weapons. Very interestingly, Behringer argues that the middle powers are more likely to be successful if they opt for fasttrack instead of consensus-based diplomacy. 62 Oslo I Meeting on Small Arms and Light Weapons, An International Agenda on Small Arms and Light Weapons: Elements of a Common Understanding, Concerns and Challenges, 13–14 July 1998. The participating states were Belgium, Brazil, Burkina Faso, Canada, Colombia, France, Germany, Indonesia, Japan, Mali, Mexico, Mozambique, Netherlands, Norway, Philippines, South Africa, Sweden, Switzerland, UK, United States and Zimbabwe. 63 Ibid. 64 UN General Assembly Resolution A/53/681, annex, 8 June 1999. 65 The NGOs present were InterAction, WorldVision, Handicap International, Human Rights Watch Arms Project, Amnesty International, Physicians for Human Rights, ICRC, Pax Christi, International Alert, Arias Foundation, Africa Policy Centre, BASIC, Federation of American Scientists, Council on Economic Priorities, Saferworld, Center for Defense Information, Coalition to Stop Gun Violence, Johns Hopkins University Gun Policy Center, and the MIIS (there was also one individual in his private capacity as a gun-control activist). 66 This section draws on original notes from the meeting transmitted to the author in 1998 by the organizers of the Preparatory Committee to IANSA. 67 These goals were put forward by Natalie Goldring from BASIC. 68 In a personal interview with the author (2002, op. cit.), Laurance said he was criticized especially by people engaged in the landmines campaign, who thought he was suggesting something that would compete with the latter campaign. Yet there was an acknowledgement that the problems of small arms were much more complex. 69 According to Laurance, Axworthy was even more interested in acting on the smallarms problem than he was in landmines. 70 Interview with Laurance, 2002, op. cit. 71 See Small Arms Survey database, online, available at: www.smallarmssurvey.org/ Database.html: “Resources,” “Documents from Regional and other International Forums” to see all the existing politically and legally binding documents on small arms, including those after 2001. 72 UN General Assembly, op. cit.; UN General Assembly, Report of the UN Group of Governmental Experts on Small Arms, A/54/258, 19 August 1999. 73 The 1997 Panel Report, annex, addressed each of those issues and was endorsed by the General Assembly in its Resolution 52/38 J of 9 December 1997. By Resolution 52/38 J, the General Assembly endorsed the recommendations contained in the 1997 Panel Report, and called upon all member states to implement the relevant recommendations through international and regional cooperation among police, intelligence, customs and border-control services. 74 1997 Panel Report, annex.

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75 Ibid. 76 By Resolution 53/77 E of 4 December 1998, the UN decided to convene an international conference on the illicit arms trade in all its aspects by 2001. 77 In accordance with para. 5 of Resolution 52/38 J, the Secretary-General appointed, in April 1998, a second group of governmental experts that issued the 1999 Group Report. 78 OAS, Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, General Assembly, Twenty-fourth Special Session OEA/Ser.P, Washington, DC, AG/RES. 1 (XXIV-E/97), 14 November 1997. 79 As of 1 March 2004, 22 OAS member states had ratified the OAS Convention (Antigua and Barbuda, Argentina, Bahamas, Belize, Bolivia, Brazil, Chile, Costa Rica, Colombia, Ecuador, El Salvador, Grenada, Guatemala, Mexico, Nicaragua, Panama, Paraguay, Peru, Saint Lucia, Trinidad and Tobago, Uruguay and Venezuela), and 33 of the 34 active OAS member states (including the United States) have signed it. On 9 June 1998, the convention was submitted to the US Senate for its advice and consent to ratification. 80 For an excellent study linking the convention and terrorism, see Matthew Schroeder, “Small arms, terrorism and the OAS firearms convention,” Occasional Paper Series, Federation of American Scientists, March 2004. 81 OAS, Report of the Permanent Council on the Draft Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, AG/doc.6 (XXIV-E/97) rev. 1, 1997. 82 EU, Resolution on a European Code of Conduct on the Export of Arms, European Parliament, 0104/98, 15 January 1998. 83 Council of the European Union, 13779/02, PESC 446 COARM 14, Brussels, 11 November 2002; www.fas.org/asmp/campaigns/code/eucode.html. 84 EU, European Union Joint Action on Small Arms, resolution adopted by the Council on the basis of Article J.3 of the Treaty on European Union on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons, 1999/34/CFSP, 17 December 1998. 85 EU, Council Joint Action of 12 July 2002 on the European Union’s contribution to combating the destabilising accumulation and spread of small arms and light weapons and repealing Joint Action 1999/34/CFSP, 2002/589/CFSP, L 191/1, July 2002. 86 OSCE, OSCE Document on Small Arms and Light Weapons, FSC.DOC/1/00, 24 November 2000. 87 See ibid., sec. VI, Final Provisions. 88 Brasilia Declaration of the Regional Preparatory Meeting of the Latin American and Caribbean States for the 2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, Itamaraty Palace, Brasilia, 22–24 November 2000. See also UN General Assembly document A/56/182, which details the issuing of the Brasilia Declaration. 89 Nairobi Declaration on the Problem of the Proliferation of Illicit Small Arms and Light Weapons in the Great Lakes Region and the Horn of Africa, Nairobi, 15 March 2000, online, available at: www.smallarmssurvey.org/source_documents/ Regional%20fora/Africa/Nairobidecl000315.pdf. 90 Bamako Declaration on an African Common Position on the Illicit Proliferation, Circulation and Trafficking of Small Arms and Light Weapons, adopted by the Member States of the OAU, in pursuance of Decision AHG/Dec. 137 (LXX) of 1999, 30 November–1 December 2000, Bamako, Mali. 91 SADC, Protocol on the Control of Firearms, Ammunition and Other Related Materials in the Southern African Development Community Region, August 2001.

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92 The participating countries are Burundi, Democratic Republic of Congo, Djibouti, Ethiopia, Eritrea, Kenya, Rwanda, Sudan, Uganda and United Republic of Tanzania, pursuant to UN General Assembly resolutions regarding the convening of UN 2001. 93 Online, available at: www.nbisecsalw.org. 94 Online, available at: www.saferafrica.org/DocumentsCentre/NAIROBI-Protocol.asp. 95 Noel Stott, “Implementing the Southern Africa Firearms Protocol: identifying challenges and priorities,” Occasional Paper, no. 83, Institute for Security Studies, Pretoria, South Africa, November 2003. For the text of the SADC Protocol, see Small Arms Survey database, op. cit., “Resources,” “Documents from Regional and other International Forums,” “Africa.” 96 Angola, Botswana, DRC, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe. 97 See Association of Southeast Asian Nations (ASEAN), Co-Chairperson’s Summary Report of the Regional Seminar on Implementing the UN Program of Action on Small Arms and Light Weapons, Manila, Philippines, 9–10 July 2002 and ASEAN, Work Program on Terrorism to Implement the ASEAN Plan of Action to Combat Transnational Crime, Kuala Lumpur, Malaysia, 17 May 2002, both documents online, available at: www.smallarmssurvey.org/resources/reg_docs.htm#asia. 98 See Small Arms Survey database, op. cit., “Resources,” “Asia,” “South Asia and Small Arms: Synbook Report of National Consultations and Regional Strategy Meeting (July 2001).” 99 See UN General Assembly Resolution A/56/296, 14 August 2001. 100 UN General Assembly, 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, A/Res/55/255, 8 June 2001. 101 UN General Assembly, The Program of Action to Prevent, Combat, and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, issued as part of the Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 9–20 July 2001, A/CONF.192/PC/L.5/Rev.1, 2001; see Small Arms Survey database, op. cit., “Resources,” “2001 United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects (9–20 July 2001).” 102 “Information Note on the Firearms Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition at the 1st Preparatory Committee of the 2001 UN Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, UN, New York, 28 February–3 March 2000,” Small Arms Survey database, op. cit., “Government Documents and Statements,” “UN 2001 Conference Documents.” 103 Keith Krause, “Multilateral diplomacy, norm-building and UN conferences: the case of small arms and light weapons,” Global Governance 8(2), 2002, 248. 104 UN General Assembly Resolution A/RES/59/99, 10 December 2004. 105 Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005, p. 72. 106 See, Report of the United Nations First Biennial Meeting of States to Consider the Implementation of the Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, A/Conf.192/BMS/2003/1, 18 July 2003. 107 Consolidated Report of the Secretary General to the General Assembly on Small Arms, Including: Assistance to States for Curbing Illicit Traffic in Small Arms and Collecting Them and the Illicit Trade in Small Arms and Light Weapons in All its Aspects, A/60/161, 25 July 2005.

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108 109 110 111

Watson et al., op. cit., executive summary, p. 5. Ibid. Ibid. Ibid. 3 THE DESTRUCTION AND DISPOSAL OF SURPLUS WEAPONS

1 The terms “small-arms destruction” or “weapons destruction” will be used interchangeably to indicate the practice of destroying excess or “surplus” weapons, either resulting from shrinking arsenals and post-conflict situations, or confiscated in urban crime contexts. For an in-depth discussion of “surplus” weapons, see Bonn International Conversion Center (BICC), Conversion Survey 1996: Global Disarmament, Demilitarization and Demobilization, Oxford University Press, 1996. 2 Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005, p. 307. 3 This will appear in the section entitled “Norm diffusion and influence,” and the documents analyzed here are those referred to in Chapter 2, in the section entitled “Legal and political framework on small arms.” 4 Martha Finnemore and Kathryn Sikkink, “International norm dynamics and political change,” International Organization 52(4), 1998, 901. 5 Ibid., p. 900. 6 The hypothetical norm guiding this work is based on UN General Assembly Resolutions A/55/323, 25 August 2000 and A/56/296 of 14 August 2001. The first resolution is a report that presents an overview of the Secretary-General’s broad-based consultations on illicit trafficking in small arms following the General Assembly’s adoption by consensus of Resolution 54/54 R of 1 December 1999. The report presents the results of meetings convened under UN auspices as well as those convened by regional and sub-regional organizations and by states or groups of states, views of a number of member states on illicit small arms trafficking, and activities of various representatives of civil society on the issue of illicit traffic in small arms and a questionnaire transmitted by the UN to regional groups and organizations, research institutes and NGOs. Therefore, this report reflects a widely endorsed outline of what the main components of a norm on destruction should be. The second resolution upon which the hypothetical norm is based is also a report providing an overview of the Secretary-General’s broad-based consultations on illicit trafficking in small arms and light weapons following the adoption by consensus of General Assembly Resolution 55/33 Q of 20 November 2000. The report also presents the results of meetings convened on the issue under UN auspices, as well as those convened by regional organizations and by states, information and data provided by a number of member states on the types and quantities of surplus, confiscated or collected small arms and light weapons that have been destroyed, and on the methods of their destruction. Therefore, the hypothetical norm advanced here is well grounded on practices shown within the General Assembly. 7 This study will deliberately not focus a great deal of attention on this aspect of the normative development of weapons destruction, or early American-based weapons destruction efforts, because, in the interests of space, I chose to focus more on the other two tracks of normative development. See Daphne Sabanes Plou, Peace in Troubled Cities, Creative Models of Building Community Amidst Urban Violence, World Council of Churches, 1999; Judy Zimmerman-Herr and Robert Herr (eds), Transforming Violence, Linking Local and Global Peacemaking, Herald Press, 1998; and Peace to the City Campaign, The Campaign in Process (1997–1998), report of the Consultation on the Program to Overcome Violence, Rio de Janeiro, Brazil, 13–18 April 1996. The Peace to the City campaign was adopted by the World

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9 10 11 12

13 14 15 16

17 18 19 20 21

22 23 24 25

Council of Churches in September 1996 as a global initiative within the Program to Overcome Violence. The campaign concentrates on seven cities around the world where both destructive and constructive forces are at play. The focus of the campaign is not on the violence in the cities, the widespread incidence and complexities of which are widely known, but on imaginative efforts to overcome violence through cross-community work to build bridges between and to reconcile communities drawn into violent conflict. Author’s interview with Herbert Wulf, former founder-director of the BICC, held in December 2003, through a questionnaire and e-mail exchanges. See also one of Saferworld’s advocacy papers, by Saferworld and International Alert for the European Platform on Conflict, Prevention and Transformation, Preventing Violent Conflict: Opportunities for the Swedish and Belgian Presidencies of the European Union in 2001, December 2000. See the UNIDIR studies that will be analyzed in more detail later in this chapter. See BICC, op. cit., p. 23. See the various UNIDIR studies given in note 34, below, especially Estanislao A. Zawels et al., Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: the Issues, UNIDIR, 1996, fn. 28. Sami Faltas, Glenn McDonald and Camilla Waszink, “Removing small arms from society: a review of weapons collection and destruction programmes,” Small Arms Survey Occasional Paper, no. 2, July 2001; see also, World Bank, Demobilization and Reintegration of Military Personnel in Africa: the Evidence from Seven Country Case Studies, Report no. IDP-130, World Bank, October 1993. Edward Peartree, “Destroying small arms: US policy and programs,” US Foreign Policy Agenda 6(2), June 2001, 15–18; interview with Wulf, op. cit.; Faltas et al., op. cit. Interview with Wulf, op. cit. Edward J. Laurance and Herbert Wulf, Coping with Surplus Weapons: a Priority for Conversion Research and Policy, BICC Brief, no. 3, June 1995. Peartree, op. cit.; see also Denise Garcia, “World politics of restraint: curbing the unrestricted availability and proliferation of small arms and light weapons in current international relations,” mémoire presented at the Graduate Institute of International Studies, Geneva, October 1999. The BICC utilizes a working definition of “conversion,” a much-contested concept, as the civilian re-use of military resources. Source: UN General Assembly Resolutions A/51/452/, A/52/264, A/53/169, A/55/323 and A/56/296. Paul C. Szasz, “International norm-making,” in Edith Brown Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions, UN University Press, 1992, Chapter 2. Elli Kytömäki and Valerie Yankey-Wayne, Implementing the United Nations Program of Action on Small Arms and Light Weapons: Analysis of the Reports Submitted by States in 2003, UNIDIR, October 2004. Based on the vast experience of small-arms destruction South Africa amassed, see Sarah Meek and Noel Stott, A Guide to the Destruction of Small Arms and Light Weapons: the Approach of the South African National Defence Force, UNIDIR, 2004. Ettienne Hennop, Operations Rachel, Saferafrica, 2003. Ibid., p. 21. Wolf-Christian Paes and Sami Faltas, Exchanging Guns for Tools: the TAE Approach to Practical Disarmament: an Assessment of the TAE Project in Mozambique, BICC Brief, no. 29, 2004. See UN General Assembly Resolution A/56/296.

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26 Later formalized as the SADC Protocol. 27 See UN General Assembly Resolution A/56/296. 28 Based on UN General Assembly Resolutions A/51/452, A/52/264, A/53/169, A/55/323 and A/56/296. See also online, available at: www.iansa.org/action/2005/ gun-destruction-day.htm. 29 Brazil enacted the Statute of Disarmament in December 2003, a federal law that makes it obligatory to destroy all seized or surplus weapons. See Small Arms Survey database, online, available at: www.smallarmssurvey.org/Database.html: “Brazil Statement to the Second BMS in 2005.” 30 The German government has destroyed almost one million small arms (i.e. over 70 percent of the surplus small arms in the country after reunification in 1990); see 1999 Group Report, p. 17. 31 Watson et al., op. cit., p. 269. 32 Ibid., p. 270. 33 Other examples include Gramsh, 1999, 5,981 weapons destroyed; DRC, 8,000 grenades and other explosives destroyed; Bosnia, 1999, 15,169 small arms destroyed by SFOR; Herzegovina, 2001, 57,492 grenades and 5,385,130 rounds of ammunition destroyed; Macedonia, 2001, 3,875 weapons and 397,625 mines, explosives and rounds of ammunition destroyed by NATO; Mendoza, 2000–1, 2,566 weapons destroyed by the Argentine government (Small Arms Survey, Small Arms Survey 2002: Counting the Human Cost, Oxford University Press, 2002). 34 As in the “epistemic communities,” outlined in Chapter 2. 35 Jeremy Ginifer, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Rhodesia/Zimbabwe, UNIDIR, 1995; Clement Adibe, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Liberia, UNIDIR, 1996; Paulo Wrobel, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Nicaragua and El Salvador, UNIDIR, 1996; Marcos Mendiburu and Sarah Meek, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Haiti, UNIDIR, 1996; Zawels et al., op. cit.; Andrei Raevsky, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Aspects of Psychological Operations and Intelligence, UNIDIR, 1996; Eric Berman, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Mozambique, UNIDIR, 1996; Christopher Smith, Peter Batchelor and Jakkie Potgieter, Disarmament and Conflict Resolution Project: Small Arms Management and Peacekeeping in Southern Africa, UNIDIR, 1996; Jianwei Wang, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Cambodia, UNIDIR, 1996; Barbara Ekwall-Uebelhart and Andrei Raevsky, Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes: Croatia and Bosnia, Herzegovina, UNIDIR, 1996; Ilkka Tiihonen et al., Disarmament and Conflict Resolution Project: Managing Arms in Peace Processes Training, UNIDIR, 1998. 36 Zawels et al., op. cit., introduction. 37 Sverre Lodgaard, “Managing arms in peace process,” Policy Sciences 30, 1997, 143–50. 38 Wrobel, op. cit.; Berman, op. cit.; Smith et al., op. cit. 39 Smith et al., op. cit., p. 64. 40 Ibid., p. 65. 41 UN Security Council Resolution 850, July 1993. 42 Wrobel, op. cit., pp. 29–34. 43 Ibid., pp. 138–42. 44 Lodgaard, op. cit. 45 Kees Kingma, “The role of demobilization in the peace and development process in sub-Saharan Africa: conditions for success,” African Security Review 5(6), 1996, 33–42.

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46 Berman, op. cit., pp. 73–85. Other sources say approximately 190,000 weapons had been collected, online, available at: www.bicc.de/helpdesk/stories/mozambique.html. 47 Berman, op. cit. 48 Alex Vines, “The struggle continues: light weapons destruction in Mozambique,” Occasional Papers in International Security Policy, no. 25, April 1998. 49 Paes and Faltas, op. cit., p. 9. 50 See online, available at: www.iansa.org/action/gun_destruction_day_2004.htm. 51 See online, available at: www.iansa.org/action/2005/gun-destruction-day.htm. 52 The GIS is chaired by Germany and meets in New York. The approach is two-fold: to create the conditions for disarmament and weapons destruction and, at the same time, to provide a secure political and social environment for people affected by the conflict. This can take the form of programs designed to eliminate direct threats to the population (weapons destruction, arms conversion, mine clearance), to control weapons flows and to rebuild society (demobilization and reintegration of former combatants into civilian life, help in rehabilitating social structures, confidencebuilding among former combatants). The key feature of GIS-sponsored programs is their practical relevance on the ground in peace-building processes at the regional level. As the principal sponsor of the resolution Consolidating Peace Through Practical Disarmament Measures, Germany, with its contribution thus far of US$280,000 (US$136,000 in 2001) was among the principal national donors; see online, available at: www.auswaertiges-amt.de/www/en/willkommen/index_html. 53 The governments that constitute the Trust Fund are Belgium, Canada, the Netherlands, Norway, Switzerland and the UK. 54 UN General Assembly, Consolidation of Peace Through Practical Disarmament Measures, A/RES/59/82, 16 December 2004. 55 Interview with Wulf, op. cit. 56 UN Security Council, Final Report of the UN Panel of Experts on Violations of Security Council Sanctions against Unita (“The Fowler Report”), S/2000/203, 10 March 2000. 57 Edward J. Laurance, “Surplus light weapons as a conversion problem: unique characteristics and solutions,” in Laurance and Wulf, op. cit. Laurance enumerates the facts that explain the small arms and light weapons surplus. 58 Peartree, op. cit. 59 The first major result was Laurance and Wulf, op. cit. This was followed in 1996 by Michael Renner, An Overview of the Economic Costs of the Dismantlement of Weapons and the Disposal of Military Surplus, BICC Brief, no. 6, March 1996. BICC, Conversion Survey 1997: Global Disarmament and Disposal of Surplus Weapons, Oxford University Press, 1997, was also devoted to surplus weapons. It includes a full chapter on small arms and light weapons. 60 Interview with Wulf, op. cit. and interview with Edward Peartree, US State Department official, Washington, DC, 16 December 2003. 61 Elisabeth Clegg et al., “Reducing the stock of the illicit trade: promoting best practices in weapons collection programmes,” BASIC, International Alert, Saferworld Briefing, no. 12, 2001. 62 1999 Group Report (more details are given below). 63 Robin-Edward Poulton and Ibrahim Youssouf, A Peace of Timbuktu: Democratic Governance, Development and African Peacemaking, UNIDIR, 1998. 64 ECOWAS issued the Declaration of a Moratorium on Importation, Exportation and Manufacture of Light Weapons in West Africa at its Twenty-first Ordinary Session of the Authority of Heads of State and Government, held in Abuja, Nigeria, 30–31 October 1998. 65 On 24 September 1999, the President of the Security Council issued statement S/PRST/1999/28, important for the developments on the norm-emergence processes, detailed in preceding sections.

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66 Introduced by Mali on behalf of a group of African states. 67 Sverre Lodgaard, Chronology of Events Relating to the ECOWAS Moratorium, online, available at: www.nisat.org. 68 UN General Assembly Resolutions 52/38, 53/77 B, 56/24 U, A/57/510. The underlying rationale for these resolutions was that the illicit circulation of massive quantities of small arms through the world hinders development and contributes to insecurity. 69 UN General Assembly Resolutions 49/75 G of 15 December 1994, 50/70 H of 12 December 1995, 51/45 L of 10 December 1996 and 52/38 C of 9 December 1997. 70 See UNDP, Gramsh Pilot Project: Weapons in Exchange for Development, progress report, 23 February 1999; UNDP, Weapons for Development, report of the UNDP Mission for an Arms Collection Pilot Programme in the Gramsh District of Albania; UNIDIR, Implementation of the Gramsh Pilot Project in Albania, status report, 20 January 1999; and BICC, Conversion Survey 1996: Global Disarmament, Demilitarization, and Demobilization, Oxford University Press, 1996. Finally, information can also be found online, available at: www.bicc.uni-bonn.de, “Weapons Profile.” 71 BICC, Conversion Survey 1999: Global Disarmament, Demilitarization, and Demobilization, Nomos, 1999, p. 110. 72 Ibid. 73 Peartree, op. cit. 74 For an analysis of another project carried out in Albania in 2002–3, see Sami Faltas and Wolf-Christian Paes, You Have Removed the Devil from Our Door: an Assessment of the UNDP Small Arms and Light Weapons Control (SALWC) Project in Albania, BICC, 30 October 2003. 75 By counting the number of “yes” readings for each document, plus counting horizontally the number of “yes” readings for each component of the norm. 76 1997 Panel Report, pp. 18–25. 77 Ibid., pp. 22–3. 78 1999 Group Report, p. 15. 79 Owen Greene, “Stockpile security and reducing surplus weapons,” BASIC, International Alert, Saferworld Briefing, no. 3, 2000. 80 1999 Group Report, p. 18. 81 OSCE Document. 82 Ibid., para. 2: When assessing whether it has a surplus of small arms, each participating State could take into account the following indicators: (i) The size, structure and operational concept of the military and security forces; (ii) The geopolitical and geostrategic context including the size of the State’s territory and population; (iii) The internal or external security situation; (iv) International commitments including international peacekeeping operations; (v) Small arms no longer used for military purposes in accordance with national regulations and practices. 83 Ibid., sec. IV C, para. 1. 84 The EU was counted as 15 votes. 85 I made this assessment by counting the times each state expressed an opinion related to a paragraph on weapons destruction. For instance, the EU spoke seven times, the United States six, and Japan seven times also. India, Indonesia and Canada spoke four times each (with Canada making an entire page proposal). This compares to less

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vocal proponents like Norway, Australia, Philippines, Israel, Malaysia, Russia, China, the Arab Group and Mali, all of whom spoke three times each. The compilations are available online, available at: www.smallarmssurvey.org. 86 Small Arms Survey database, op. cit., “Government Documents and Statements,” “Program of Action Compilations,” “Final Compilation,” sec. II, new para. 17: When assessing whether it has a surplus of small arms, each state could take into account the following indicators: (I) the size, structure and operational concept of the military and security forces; (II) the geopolitical and geostrategic context including the size of the state’s territory and population; (III) the internal or external security situation; (IV) international commitments including international peacekeeping operations; (V) small arms no longer used for military purposes in accordance with national regulations and practices. Regular reviews should in particular be carried out in connection with: (I) changes of national defence policies; (II) the reduction or re-structuring of military and security forces; (III) the modernization of small arms stocks or the acquisition of additional small arms. 87 Ibid., sec. II, para. 6. 88 Japan proposed the exclusion of the mention of “environmentally sound measures of destruction.” 89 Small Arms Survey database, op. cit., “Government Documents and Statements,” “Program of Action Compilations,” “Final Compilation,” sec. II, para. 6. The EU’s position is expressed in para. 21. 4 REGULATING ILLICIT ARMS BROKERING 1 The terms “brokers,” “dealers,” “fixers,” “arms fixers,” “arms traffickers” and “illicit brokers” – defined in the subsequent section – will be used here interchangeably. 2 Elli Kytömäki and Valerie Yankey-Wayne, Implementing the United Nations Program of Action on Small Arms and Light Weapons: Analysis of the Reports Submitted by States in 2003, UNIDIR, October 2004, pp. 91–3. Some of them only acknowledge the existence of the problem and stating that, thus far, they do not have legislation. 3 See Chapter 1 for a discussion of this term. 4 Fund for Peace, Model Convention on the Registration of Arms Brokers and the Suppression of Unlicensed Arms Brokering, document prepared for the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 9–20 July, 2001. 5 Loretta Bondi, while at the Fund for Peace, a Washington, DC-based NGO, launched the task of drafting a model convention based on the OAS Convention of 1997, the OECD Convention on Combating Bribery of Officials in International Business Transactions of 1997, a draft of the SADC Protocol, and various domestic laws on arms brokering, in particular the American and the Polish laws and UN Security Council resolutions. First, the model convention has a broad definition of brokering activities that encompasses the “importing, exporting, purchasing, selling, transferring, supplying or delivering of arms or arms services, or any action taken to facilitate any of those activities, including transporting, freight forwarding, mediating, insuring or financing.”

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6 7

8 9 10

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

27

All these activities have to be accompanied by registration and licensing. Second, the guiding principles to the model convention are those set forth in international protection of human rights law and international humanitarian law. Third, the model convention makes the link between money and arms flows. Fourth, the model convention seeks to establish harmonization measures among the several extradition procedures. Fund for Peace, op. cit., art. 5. Ilhan Berkol, Frédéric Schutz and Michel Wery, “Marking, record-keeping, and tracing of small arms and light weapons: contribution to the Third Session of the Preparatory Committee to the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects,” New York, 19–30 March 2001. Brian Wood and Johan Peleman, “Making the deal and moving the goods: the role of brokers and shippers,” in Lora Lumpe (ed.), Running Guns: the Global Black Market in Small Arms, Zed Books, 2000, p. 135. Author’s interview with Brian Wood, Amnesty International, Geneva, 10 April 2003. Loretta Bondi and Elisa Keppler, Casting the Net? The Implications of the U.S. Law on Arms Brokering, Fund for Peace Arms and Conflict Program, January 2001. This report was the first produced by the Fund for Peace Arms and Conflict Program, among others that analyzed the question. Amnesty International (AI), Rwanda: Arming the Perpetrators of the Genocide, AI (London), June 1995; AI, Rwanda/Zaire: Rearming with Impunity: International Support for the Perpetrators of the Rwandan Genocide, AI (New York), May 1995. Brian Wood and Johan Peleman, The Arms Fixers: Controlling the Brokers and Shipping Agents, a joint report by BASIC, NISAT and PRIO, Basic Research Report, no. 99.3; PRIO Report, no. 3/99, 1999, p. 31. Ibid. Ibid., p. 2. Ibid., p. 14. Ibid., p. 117. Holger Anders and Silvia Cattaneo, Regulating Arms Brokering: Taking Stock and Moving Forward the United Nations Process, GRIP, 2005, p. 28. Silvia Cattaneo, “Targeting the middlemen: controlling brokering activities,” in Small Arms Survey, Small Arms Survey 2004: Rights at Risk, Oxford University Press, p. 142. Ibid., pp. 130–40. Paul C. Szasz, “International norm-making,” in Edith Brown Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions, UN University Press, 1992; see Chapter 2. UN General Assembly, Guidelines for International Transfers (May 1996) in the Context of General Assembly Resolution 46/36 H of 6 December 1991, 7 May 1996. ILC, “Commentary on Article 27 of the Draft Articles on the Origin of State Responsibility,” ILC Yearbook 1998, ILC, 1998, pp. 99–105. See Emanuela-Chiara Guillard, “What’s legal? What’s illegal?” in Lumpe, op. cit., pp. 27–46. Morris L. Cohen et al., How to Find the Law, 9th edn, West, 1989, pp. 450–95. Thomas Buergenthal and Harold Maier, Public International Law in a Nutshell, 2nd edn, West, 1990, pp. 22–3. As stated by Loretta Bondi, the Director of the Cooperative Security Program at the Center for Transatlantic Relations at Johns Hopkins University, in the author’s interview with her in Washington, DC on 16 December 2003. While agreeing that the American law is the best-articulated law in existence, Bondi underscores that the problem with it is that it has never been enforced. To date, no prosecution has occurred under this law. USA, An Act to Amend the Foreign Assistance Act of 1961 and the Arms Export Control

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28 29 30

31 32

33

Act to Make Improvements to Certain Defense and Security Assistance Provisions under those Acts, to Authorize the Transfer of Naval Vessels to Certain Foreign Countries, and for Other Purposes, Public Law 164, 104th Cong., 2nd Session, 21 1996, sec. 151, Arms Export Act, US Code (US.C), vol. 22, sec. 2778 (b)(1976). This law requires that all those involved in the export and import of defense articles and services register with the US government and obtain an export license for each transaction in which they participate. Licenses may be prohibited if the export of the article will contribute to an arms race; aid in the development of weapons of mass destruction; support international terrorism; increase the possibility of the outbreak or escalation of conflict and jeopardize world peace and security, as well as US foreign policy goals; violate a US or UN Security Council arms embargo; and prejudice the development of bilateral or multilateral arms control or non-proliferation agreements or other arrangements. Bondi and Keppler, op. cit., p. 26. Author’s interview with Edward Peartree, US State Department official, Washington, DC, 16 December 2003. Keith Krause, “Norm-building in security spaces: the emergence of the light weapons problematic,” GERSI/REGIS Working Papers, 2001. Krause points to the creation of “expert” knowledge as a necessary condition for the emergence of collective action on any issue, along with the development of an “expert” consensus that a problem exists and attempts to trace its rough contours. The participating states were Belgium, Brazil, Burkina Faso, Canada, Colombia, France, Germany, Indonesia, Japan, Mali, Mexico, Mozambique, Netherlands, Norway, Philippines, South Africa, Sweden, Switzerland, UK, United States and Zimbabwe. NISAT was established in the wake of the Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Landmines and on their Destruction. The organizations that constitute NISAT are the Norwegian Red Cross, the Norwegian Church Aid, the Norwegian Institute of International Affairs (NIIA) and PRIO. In the author’s interview with Wood, op. cit., he said, among other things: One of the interesting things about this is that the United States has a very comprehensive law that covers brokering, shipping, financing that has a component of extraterritoriality. Now the governments of Europe must change their laws and take action. In fact, when studying the subject in Africa, for example, one finds only the US arms trafficking over the last couple of decades have been where the CIA and the USA covert operations, for example to UNITA, took place. One finds fewer private business people who are US citizens and American nationals outside these covert operations because this law is there and they know they can be prosecuted. Whereas in contrast, you find a lot of nationals from Western and Eastern Europe, from Israel, from the Middle East and South America engaged in trafficking. This is because their home-country laws do not affect that.

34 The participating states were Australia, Austria, Belgium, Brazil, Canada, Chile, Finland, Germany, Japan, Mali, Mexico, Netherlands, Norway, South Africa, Sweden, Switzerland, UK and United States. 35 UN General Assembly, Report of the Group of Governmental Experts Established Pursuant to General Assembly Resolution 54/54 V of 15 December 1999, Entitled “Small Arms,” A/CONF.192/PC33, 12 March 2001. 36 Lumpe, op. cit. Another publication that contributed to the generation of knowledge about the brokering of arms illicitly is the Small Arms Survey, Small Arms Survey 2001: Profiling the Problem, Oxford University Press, 2001. This publication dedicates an entire chapter to the question of brokers, entitled “Fuelling the flames: brokers and transport agents in the illicit arms trade,” pp. 95–139.

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37 Oslo II Meeting on Small Arms and Light Weapons, Elements of a Common Understanding, Concerns and Challenges, 6–7 December 1999. 38 Interview with Wood, op. cit. 39 UN Security Council, Letter dated 26 January 1996 from the Secretary-General addressed to the President of the Security Council, 96-01127 (E) 300196/9601127; Annex, letter dated 13 March 1996 from the Secretary-General addressed to the President of the Security Council, S/1996/95, 14 March 1996; Letter dated 1 November 1996 from the Secretary-General addressed to the President of the Security Council, S/1997/1010, 24 December 1997. An addendum to UNICOI’s third report can be found in UN Security Council, letter dated 22 January 1998 from the Secretary-General addressed to the President of the Security Council, S/1998/63, 26 January 1998; and letter dated 18 November 1998 from the Secretary-General addressed to the President of the Security Council, S/1998/1096, 18 November 1998. 40 Loretta Bondi, “Expanding the net: a model convention on arms brokering,” briefing paper for UN 2001, Fund for Peace, 29 June 2001. 41 According to the Small Arms Survey, Small Arms Survey 2003: Development Denied, Oxford, 2003, pp. 230–4. See also the Small Arms Survey database, online, available at: www.smallarmssurvey.org/Database.html, “Government Documents and Statements,” “Country and Date Information” to find the country statements. 42 Interview with Wood, op. cit. 43 Ibid. 44 Interview with Peartree, op. cit. 45 Kathi Austin, Arms Trafficking: Closing the Net: a Test Case for Prosecution Under the US Law on Arms Brokering, Fund for Peace, 15 June 2001. 46 Ibid., preface. 47 In the interview with Peartree, op. cit., he gave credit to the actions of Norway and the Netherlands over the past year in advancing normative change. On the NGO side, he commended the research and writing of Loretta Bondi and Kathi Austin, along with that of Brian Wood. 48 Biting the Bullet, “Controlling arms brokering and transport agents: time for international action,” Biting the Bullet Briefing 8, 2001, 1–35. 49 By counting the number of “yes” readings for each document, plus counting horizontally the number of “yes” readings for each component of the norm. 50 UN General Assembly, 12 March 2001, op. cit. 51 Small Arms Survey, 2001, op. cit., pp. 230–4. 52 See Small Arms Survey database, op. cit. 53 Part of UN General Assembly Resolution, General and Complete Disarmament: Small Arms, A/52/298, 27 August 1997. 54 Ibid., p. 19. 55 OAS Convention, art. XIX: “Extradition”: . . . 2 Each of the offenses to which this article applies shall be deemed to be included as an extraditable offense in any extradition treaty in force between or among the States Parties. The States Parties undertake to include such offenses as extraditable offenses in every extradition treaty to be concluded between or among them. 3 If a State Party that makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it does not have an extradition treaty, it may consider this Convention as the legal basis for extradition with respect to any offense to which this article applies. 4 States Parties that do not make extradition conditional on the existence of a treaty shall recognize offenses to which this article applies as extraditable offenses between themselves.

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5 Extradition shall be subject to the conditions provided for by the law of the Requested State or by applicable extradition treaties, including the grounds on which the Requested State may refuse extradition. 6 If extradition for an offense to which this article applies is refused solely on the basis of the nationality of the person sought, the Requested State Party shall submit the case to its competent authorities for the purpose of prosecution under the criteria, laws, and procedures applied by the Requested State to those offenses when they are committed in its own territory. The Requested and Requesting States Parties may, in accordance with their domestic laws, agree otherwise in relation to any prosecution referred to in this paragraph. 56 UN General Assembly, 12 March 2001, op. cit. The group was appointed in accordance with para. 14 of Resolution 54/54 V. 57 Ibid., para. 66. 58 In the interview with Peartree, op. cit., he said that he did not expect any kind of commitment to developing a legal instrument on brokering to emerge in 2001, as brokering in particular is a very complex issue. At the time of UN 2001, fewer than ten countries worldwide even had a national brokering law. 59 Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005, p. 257. 60 In Larger Freedom: Towards Security, Development, and Human Rights for All, A/59/2005, March 2005. 61 In its sec. III, “Combating Illicit Trafficking in All its Aspects: Common Export Criteria and Export Controls.” 62 OSCE Document, sec. III D, “Control over International Arms Brokering.” 63 Ibid., para. 4: “WE STRONGLY APPEAL to the wider international community and, particularly, to arms supplier countries, to: . . . iii. Seriously consider ways to discourage and eliminate the practice of dumping excess weapons in African countries and in violation of arms embargoes . . .” 64 In the interviews with Wood and Bondi, op. cit., both expressed the same views on this issue. 65 Firearms Protocol, art. 15, “Brokers and Brokering.” 66 Small Arms Survey database, op. cit., “Program of Action,” “Compilation Sections II and IV,” para. 1(d). 67 Ibid., “Compilation of Addendum I,” para. 32. 68 Ibid., para. 12. 69 Interview with Bondi, op. cit. 70 Author’s interview with Silvia Cattaneo, Boston, 25 November 2005. 71 SADC Protocol, art. 1: Brokering means: a) acting for a commission, advantage or cause, whether pecuniary or otherwise; or b) to facilitate the transfer, documentation or payment in respect of any transaction relating to the buying or selling of firearms, ammunition or other related materials; and thereby acting as intermediary between any manufacturer or supplier of, or dealer in, firearms, ammunition and other related materials and buyer or recipient thereof . . . 72 EU, EU Council Common Position on the Control of Arms Brokering, 2003/468/CFSP, 23 June 2003. 73 OAS, Draft Model Regulations for the Control of Brokers of Firearms, their Parts and Components and Ammunition, Washington, DC, OAS document 1271/03, November.

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74 Holger Anders and Silvia Cattaneo, Regulating Arms Brokering: Taking Stock and Moving Forward the United Nations process, GRIP, 2005, p. 24. 75 Wassenaar Arrangement, Elements for Effective Legislation on Arms Brokering (agreed at the 2003 Plenary), online, available at: www.wassenaar.org/2003Plenary/ Brokering_2003.htm: The Participating States of the Wassenaar Arrangement, with reference to the Initial Elements and Participating States’ fulfilment of the objectives and intentions of the Wassenaar Arrangement, in particular the objectives of: • greater responsibility in transfers of conventional arms; • the prevention of destabilizing accumulations of conventional arms; • the need to prevent the acquisition of conventional arms by terrorist groups and organisations, as well as by individual terrorists . . . 76 OSCE, Principles on the Control of Brokering in Small Arms and Light Weapons, FSC.DOC/8/04 of 4 November 2004, Vienna, online, available at: www.osce.org/ documents/fsc/2004/11/3833_en.pdf. 77 Interview with Cattaneo, op. cit. 78 Ibid.

5 MARKING, TRACING AND RECORD-KEEPING 1 Definitions of marking, tracing and record-keeping adopted in this case study from UN General Assembly, Report of the Group of Governmental Experts on Tracing Illicit Small Arms and Light Weapons, A/58/138, 11 July 2003. The group was appointed by the Secretary-General in pursuance of paragraph 10 of UN General Assembly Resolution 56/24 V of 24 December 2001. This document in part reads as follows: Paragraph 20. Tracing is understood as the systematic tracking of one or more illicit weapons found or seized on the territory of a State from their source (the manufacturer or last legal importer or last legal owner, as applicable), through the lines of supply, to the point, if any, at which they were diverted into the illicit market, and ultimately to the person or group that last possessed them. Tracing depends primarily on the adequate marking of each weapon at the time of manufacture and if appropriate, import, the keeping of accurate and comprehensive records on all weapons under the jurisdiction of the State and the exchange of information and international cooperation between States, as well as with relevant international organizations. Paragraph 21. Accordingly, the Group agreed that tracing has three key elements: marking, record-keeping, and international cooperation. All three elements have legal, technical, institutional and policy dimensions. . . . Paragraph 23. “Tracing” involves a number of key steps: Correctly identifying the weapon, part or component (type, model, calibre, unique marking, serial number); Establishing its legal status (illicit or legal); Establishing an appropriate launching point for the trace; Initiating a trace to determine: The key elements of its history, including its legal manufacturer and importer(s), where appropriate; The point of diversion, if any, from the legal sphere; The possible illicit use(s) of the weapon after diversion; Assessing the evidential value of the weapon (in a criminal investigation). 2 Elli Kytömäki and Valerie Yankey-Wayne, Implementing the United Nations Program of Action on Small Arms and Light Weapons: Analysis of the Reports Submitted by States in 2003, UNIDIR, October 2004, p. 77.

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3 UN General Assembly, Resolution A/C.1/60/L.55, 12 October 2005. 4 Small Arms Survey, Small Arms Survey 2002: Counting the Human Cost, Oxford University Press, 2002, section on tracing. 5 Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005, p. 6. 6 The hypothetical norm is based on the following documents that were not only largely endorsed by other norm advocates working in this field, but also, to a large extent, coincided with what the like-minded states and the manufacturing community wanted (Olhan Berkol, Frederic Schutz and Michel Wery, “Marking, record keeping, and tracing of small arms and light weapons,” contribution to the Third Session of the Preparatory Committee to the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, UN, March 2001; and Owen Greene et al., “The UN 2001 Conference: setting the agenda,” Biting the Bullet Briefing 1, 2001, 2–38. 7 UN General Assembly, Contribution to the Realization of an International Plan of Action in the Context of the 2001 Conference: Marking, Identification and Control of Small Arms and Light Weapons, “Food-for-thought paper,” A/CONF.192/PC/7 of 17 March 2000. This document was also presented as Establishing a Tracing Mechanism to Prevent and Reduce Excessive and Destabilizing Accumulation and Transfer of Small Arms and Light Weapons, at the Joint Azerbaijani–Swiss Workshop, Baku, Azerbaijan, 21–22 June 2001. 8 Control Arms campaign: Oxfam International, Amnesty International, IANSA, “UN ‘deal’ on arms controls means business as usual for the world’s worst arms dealers,” joint statement, 14 July 2005. 9 Charles Josselin, minister delegate for cooperation and Francophony, 13 July 2001, Small Arms Survey database, online, available at: www.smallarmssurvey.org/Database.html, “Government Statements and Documents,” “UN 2001 Documents.” 10 Charles Josselin, ministry of foreign affairs deputy spokesperson and minister delegate for cooperation and Francophony, statement in preparation for UN 2001, Paris, 12 July 2001, Small Arms Survey database, op. cit. 11 Jenö C. Staehelin, permanent observer at the Permanent Observer Mission of Switzerland to the UN, “Can sources and supplies of small arms and light weapons be traced?” UN Chronicle 1, 2001, online edition available at: www.un.org/Pubs/chronicle/2000/issue1/0100p24.htm. 12 I would like to thank Michel Wery from GRIP in Belgium for the interview that helped me to outline the first important elements for this chapter. The interview was conducted on 15 February 2002 at the Small Arms Survey in Geneva. Wery was of the opinion that the pro-gun lobby mostly dominates the position of the arms industries. This might therefore mean that these industries are not having their views and concerns accurately reflected. In fact, not all arms producers are familiar with the global movement to control small arms. The pro-gun groups lobby some of these industries and seem to imply that the position they express mirrors a wide range of industries, which might not necessarily be the case. 13 Among GRIP’s publications is Berkol et al., op. cit., which states that a harmonized, universally acceptable system would greatly facilitate the registration and processing of data (p. 4). 14 GRIP, Draft Convention on Marking, Registration and Tracing, March 2003. This draft convention was produced by GRIP, in collaboration with the Centre for International Law of the Free University of Brussels, in the framework of a research project funded by the Belgian Ministry of Foreign Affairs. 15 BASIC is no longer part of the project. The University of Bradford is a new member. 16 From a letter dated 26 October 2001 where the three organizations sent five of their briefings to those preparing for UN 2001. The letter also expresses the Biting the Bullet project’s plans to continue working after the conference by helping to develop

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17 18 19 20

21

22

23 24 25 26

27

28 29

pragmatic yet progressive policies and facilitating informed debate amongst governments and between governments and civil society. Owen Greene, “Enhancing traceability of small arms and light weapons flows: developing an international marking and tracing regime,” Biting the Bullet Briefing 5, 2000, 1–20. Geraldine O’Callaghan and Sarah Meek, “The UN Firearms Protocol: considerations for the UN 2001 Conference,” Biting the Bullet Briefing 4, 2000, 1–16. See Greene et al., op. cit. World Forum on the Future of Shooting Activities (WFSA), Report on Firearms Manufacturing Community Recommendations Regarding Firearms Marking Issues, submitted by the WFSA and its Firearms Marking Working Group to the Ad Hoc Committee on the Elaboration of a Convention Against Transnational Organized Crime, Vienna, 17–18 January 2000. The WFSA is an international organization of approximately 30 hunting, sport shooting and commercial groups that represent a significant proportion, if not the majority, of the world’s firearms producers. WFSA, Informal Workshop on Firearms Marking Model Standards and Common Serial Number Codes, 22–24 June 2000, draft report. Participants in the workshop were from the WFSA, governments, NGOs, the UN and the firearms industry. These recommendations were understood as “standards” adopted by the participants of the workshop. WFSA, Report on Firearms Community Recommendations Regarding Firearms Marking Issues, published by the WFSA, as a result of a workshop held in Brescia, Italy, 30 September–1 October 1999, entitled Technical and Manufacturing Aspects of Firearms Marking in the Context of UN regulation Efforts, 1999. Firearms manufacturers that participated in the two meetings included Beretta (Italy), Glock (Austria), Heckler & Koch (Germany), Manroy Engineering (UK), Mossberg (US), Para-Ordnance (Canada), Pedersoli (Italy), Remington (US), Steyer Mannlicher (Austria), Sturm-Ruger (US) and Taurus (Brazil). There were also representatives of the Permanent International Commission for Small Arms Testing (CIP). The CIP is an inter-governmental organization instituted to promulgate firearms safety standards. It operates under the Brussels Treaty of 1 July 1969 and has 13 signatories. European countries generally operate their firearms tracing within the CIP. The United States uses a system where the name and location of the importer are placed on imported firearms. The OAS Convention contains a similar provision that requires this practice. See WFSA statements to BMS 2003 and 2005, online, available at: disarmament2. un.org/cab/salw-2003/statements/NGO/WFSA.pdf and www.un.org/events/smallarms 2005/statements-ngos.html. WFSA statement to BMS 2003, op. cit., p. 3. WFSA statement to BMS 2003, op. cit. The Paris Process framework, within which the EPG operates, was established with the aim of advancing cooperation among commercial state-run manufacturers, governments and NGOs on cost-effective and realistic voluntary measures on marking, tracing and norms for transfer under international law. The Paris Process advances a set of voluntary measures on the basis of industry self-regulation that manufacturers can take with the support of governments in the areas of marking, tracing and norms for transfers. The recommendations of the Paris Process are set forth in the Chairman’s Report, which was circulated as a document of the UN Conference (A/Conf. 192/13). Small Arms Survey database, op. cit., “Government Documents and Statements,” “Country and Date,” “Country Statements” or “UN 2001 Conference Documents.” In a message to IANSA participants from Count Albi, executive director of the EPG, on 19 February 2002. Confidential correspondence.

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30 UN General Assembly Resolution A/55/631; Paris Process, Chairman’s Report, op. cit. 31 EPG, “EPG releases 2001 Annual Report,” press release, 23 April 2002. 32 By counting the number of “yes” scores for each document plus counting horizontally the number of “yes” scores for each component of the norm. 33 Small Arms Survey, Small Arms Survey 2003: Development Denied, Oxford University Press, 2003, pp. 230–4. See also Small Arms Survey database, op. cit. 34 Small Arms Survey database, op. cit., “Government Documents and Statements”; search made on the topic for this chapter in the months preceding UN 2001. 35 OAS Convention, art. I, para. 1. 36 Ibid., art. VI, “Marking of Firearms.” 37 1999 Group Report, para. 90, recommendation 22: “The UN should initiate a study on the feasibility of establishing a reliable system for marking all such weapons from the time of their manufacture.” 38 Ibid., para. 91. 39 OSCE Document, sec. II, para. 1. 40 Ibid., sec. II. 41 Firearms Protocol, art. 3, para. (d). 42 Program of Action, para. 7. 43 Small Arms Survey database, op. cit., “Government Statements and Documents,” “UN 2001 Documents,” “Compilation of Addendum 1.” 44 Ibid., “Final Compilation Section II.” 45 UN General Assembly, Draft Program of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, A/CONF.192/PC/L.4, 11 December 2000. In the negotiation of A/CONF.192/L.4, Canada had proposed to include a mention of the Firearms Protocol: see Small Arms Survey database, op. cit., “Government Statements and Documents,” “UN 2001 Documents.” 46 Control Arms campaign, op. cit. 47 GRIP, op. cit., March 2003. 48 Control Arms, “Tracking lethal tools – marking and tracing arms and ammunition: a central piece of the arms control puzzle,” online, available at: www.iansa.org/documents/2005/marking_tracing_report_jan2005.pdf. 49 Paragraph I: 2. The purpose of this instrument is also to promote and facilitate international cooperation and assistance in marking and tracing and to enhance the effectiveness of, and complement, existing bilateral, regional and international agreements to prevent, combat and eradicate the illicit trade in small arms and light weapons in all its aspects. Paragraph V, “Cooperation in Tracing,” is entirely dedicated to strengthening international cooperation. There are also five other provisions on cooperation in marking and tracing throughout the document. 6 CREATING A NORM OF TRANSPARENCY IN SMALL-ARMS TRANSFERS 1 The hypothetical norm presented here follows Maria Haug et al., “Shining a light on small arms exports: the record of state transparency,” Small Arms Survey Occasional Paper, no. 4, with NISAT, January 2002. This is the first comprehensive piece on transparency on small-arms transfers. 2 Small Arms Survey, Small Arms Barometer, 2005a, online, available at: www.smallarmssurvey.org/barometer/.

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3 Small Arms Survey, Small Arms Survey 2003: Development Denied, Oxford University Press, 2003, Chapter 7, ranked statements given by states at UN 2001 from most to least frequently mentioned. In July 2001, a total of 134 statements were made by, or on behalf of, 171 countries. “Information exchange” was mentioned by 77 states as helping states, collectively, to detect illicit arms flows and determine “best practices.” Information exchange was also mentioned, together with “transparency” (cited by 38 countries), as a means of building confidence among states. 4 Edward J. Laurance, Hendrik Wagenmakers and Herbert Wulf, “Managing the global problems created by the conventional arms trade: an assessment of the United Nations Register of Conventional Arms,” Global Governance 11(2), April–June 2005, 225–46, p. 230. 5 Ibid., p. 241. 6 Small Arms Survey, “Reaching for the big picture: an update on small arms transfers,” Small Arms Survey 2005: Weapons at War, Oxford University Press, 2005b, pp. 97–122. 7 Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005, p. 308. 8 For the full elaboration of this idea exclusively regarding conventional weapons, see Laurance et al., op. cit., pp. 239–40. 9 See ibid., p. 243. 10 Small Arms Survey, 2005b, op. cit., p. 97. 11 On the role of the United States in creating the norm of transparency, see Ann Florini, “The evolution of international norms,” International Studies Quarterly 40, 1996, 363–89. 12 Ibid. 13 See, Victor-Yves Ghebali, Confidence-Building Measures Within the CSCE Process: Paragraph-by-Paragraph Analysis of the Helsinki and Stockholm régimes, UN, March 1989. 14 Clifford Bob, “Beyond transparency: visibility and fit in the internationalization of conflict,” in Bernard Finel and Kristin M. Lord (eds), Power and Conflict in the Age of Transparency, Palgrave Macmillan, 2002; see in particular the conclusion in this work. 15 Ann Florini, “The end of secrecy,” in Finel and Lord, op. cit. 16 Finel and Lord, op. cit. See also, Emanuel Adler, “The emergence of cooperation: national epistemic communities and the international evolution of the idea of arms control,” International Organization 46(1), Winter 1992, 101–45. 17 Finel and Lord, op. cit., define transparency as a condition in which information about governmental preferences, intentions and capabilities is made available either to the public or other outsiders. It is a condition of openness that is enhanced by any mechanism that leads to public disclosure of information, such as a free press, open governments hearings, the Internet, and a reporting requirement in international regimes. 18 Florini, 1996, op. cit. 19 Malcolm Chalmers and Owen Greene, “The Register in its first four years,” in Malcolm Chalmers, Mitsuro Donowaki and Owen Greene (eds), Developing Arms Transparency: the Future of the UN Register, Redwood, 1997, pp. 9–39. 20 UN General Assembly, Study on Ways and Means of Promoting Transparency in International Transfers of Conventional Arms, A/46/301, September 1991. 21 Ibid. 22 Malcolm Chalmers et al., Developing the UN Register of Conventional Arms, Bradford Arms Register Studies, no. 4, University of Bradford, 1995; Canada, Department of Foreign Affairs and International Trade, The United Nations Conventional Arms Register: Canadian Practice in Preparing its Annual Data Submission, Ottawa, November, 1995; Chalmers et al., 1997, op. cit.

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23 UN Study, foreword. 24 For instance, as part of the agreements negotiated in the Forum for Security Cooperation, the OSCE participating states exchange detailed information regarding their military forces and activities, on an annual basis. Information is also provided on manpower and its organization, major weapons and equipment systems, and their planned deployments for the coming year. The annual exchange is part of the Vienna Document 1999, and takes place no later than 15 December each year. This document was adopted at the 269th Plenary Meeting the OSCE Forum for Security Cooperation in Istanbul on 16 November 1999. 25 Laurance et al., op. cit., p. 236. 26 B. Mariani and A. Urquhart, Transparency and Accountability in European Arms Export Controls: Towards Common Standards and Best Practices, Saferworld, December 2000, p. 4. 27 UN General Assembly Resolutions 46/36 L of 9 December 1991, 47/52 L of 15 December 1992, 48/75 E of 16 December 1993, 49/75 C of 15 December 1994, 50/70 D of 12 December 1995 and 51/45 H of 10 December 1996, A/RES/52/38 B, 53/77 S, 54/54 O, 55/33 U, 56/24 Q, among others. 28 Chalmers et al., 1997, op. cit.; Laurance et al., op. cit. 29 Laurance et al., op. cit. 30 Nathalie Goldring, “Developing transparency and associated control measures for light weapons,” in Chalmers et al., 1997, op. cit., p. 218; Natalie, J. Goldring, “Creating a global transparency regime,” SAIS Review 22(1), Winter–Spring 2002, 207–11. 31 UN General Assembly Resolution A/58/274, August 2003. 32 The 39 participating states in the Wassenaar Arrangement are Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, UK and United States. Agreement to establish the Wassenaar Arrangement was reached on 19 December 1995 in Wassenaar, and this was announced with a declaration issued at the Peace Palace in The Hague; online, available at: <www.wassenaar.org/docs/History.html. 33 Wassenaar Arrangement, Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, Initial Elements, as Adopted by the Plenary of 11–12 July 1996. 34 Wade Boese, “The Wassenaar Arrangement at a glance,” Arms Control, January 2005, online, available at: www.armscontrol.org/factsheets/wassenaar.asp. 35 Wassenaar members have also agreed on non-binding criteria to guide exports of shoulder-fired surface-to-air missiles, formally referred to as man-portable air-defense systems (MANPADS), and endorsed voluntary “best practices” for disposing of surplus military equipment. They have also approved non-binding criteria to guide exports of small arms and light weapons, agreed to exercise greater control on arms brokers, and committed themselves to better regulate exports of dual-use goods purchased by recipients subject to arms embargoes if the item is intended for a military end use. 36 Wassenaar Arrangement, Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies Best Practice Guidelines for Exports of Small Arms and Light Weapons (SALW), as Adopted by the Plenary of 11–12 December 2002. 37 Boese, op. cit. 38 Wassenaar Arrangement, “2003 meeting of the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies,” public statement, 2004.

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39 Lora Lumpe, “Transparency in the legal small arms trade,” paper prepared for the International Peace Research Institute, Oslo/NISAT, for the Swiss Government Workshop on Small Arms, Geneva, 18–20 February 1999. 40 Haug et al., op. cit. 41 Small Arms Survey, 2005b, op. cit., p. 98, based on data from UN Comtrade. 42 Ibid., p. 101. 43 Haug et al., op. cit. 44 Mariani and Urquhart, op. cit., p. 1. 45 Haug et al., op. cit., p. 4. 46 Ibid. 47 EU/US, Declaration by the European Union and the United States on the Responsibilities of States and on Transparency Regarding Arms Exports, EU/US Summit, Washington, DC, 18 December 2000, conclusions. 48 Jasjit Singh, “The UN Register: transparency and the promotion of conflict prevention and restraint,” in Chalmers et al., 1997, op. cit., pp. 130–1. 49 See Owen Greene and Peter Batchelor, “Information exchange and transparency: key elements of an international action program on small arms,” Biting the Bullet Briefing, 2001 9, 1–19 and Haug et al., op. cit. 50 Small Arms Survey database, online, available at: www.smallarmssurvey.org/Database.html, “Government Statements,” “Transparency” during the months preceding UN 2001. 51 UN General Assembly, A/CONF.192/PC/32, 2 March 2001. 52 Small Arms Survey, 2003, op. cit.; Small Arms Survey database, op. cit. 53 Saferworld, Taking Control: the Case for a More Effective European Union Code of Conduct on Arms Exports, report by EU NGOs, Saferworld, September 2004. 54 Mariani and Urquhart, op. cit., pp. 6–8. 55 Ibid. 56 Seventh annual report according to operative provision 8 of the European Union code of conduct on arms exports (2005/C 328/01). 57 Haug et al., op. cit., p. 19. 58 EU, Sixth Annual Report According to Operative Provision 8 of the European Union Code of Conduct on Arms Exports, 2004/C 316/01, Official Journal of the European Union, C 316/1, December 2004. 59 Croatia, Canada and Norway also align themselves with the purposes of the EU Code of Conduct. 60 EU 2004, op. cit., pp. 1–3. 61 OAS, Inter-American Convention on Transparency in Conventional Weapons Acquisitions, General Assembly, Guatemala City, 1999. 62 On 21 November 2002, the convention entered into force. A total of 20 countries, including the United States, have signed it and eight have ratified it; online, available at: www.armscontrol.org/factsheets/iactcw.asp; www.oas.org/juridico/english/sigs/a64.html. 63 USA, Department of State, factsheet, Bureau of Political–Military Affairs, 9 April 2002. 64 Haug et al., op. cit., p. 18. 65 Author’s interview with Edward Peartree, US State Department official, Washington, DC, 16 December 2003. 66 OSCE Document, sec. II, para. D. 67 Ibid., sec. III, para. F. 68 Small Arms Survey database, op. cit., “Government Documents and Statements,” “Program of Action Compilations,” “Compilation of Draft Proposals” in sec. III. 69 Ibid., “Government Documents and Statements,” “Program of Action Compilations,” “Final Compilation” in sec. II.

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70 Ibid. 71 Ibid., “Government Documents and Statements,” “Program of Action Compilations,” “Compilation of Draft Proposals” in sec. III. 72 Ibid., “Government Documents and Statements,” “Program of Action Compilations,” “Compilation of Addendum 1.” 73 Watson et al., op. cit., p. 274. 74 Ibid. 75 Ibid. 76 Ibid., p. 253. 77 Greene and Batchelor, op. cit. 7 REGULATING CIVILIAN GUN OWNERSHIP 1 “Civilian gun ownership,” “private gun possession,” “civilian possession of arms” and other similar phrases will be used interchangeably. 2 UNECOSOC, Firearm Regulation for the Purpose of Crime Prevention and Public Health and Safety, E/1997/30, E/CN.15/1997/21, E/CN.15/1997/L.19/Rev.1, 1997. 3 See online, available at: www.uncjin.org/Statistics/firearms/. 4 Lora Lumpe, “The regulation of civilian ownership and use of small arms,” briefing paper, Center for Humanitarian Dialogue, February 2005, p. 11. 5 Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005, p. 32. 6 Lumpe, op. cit. 7 Small Arms Survey, Small Arms Survey 2002: Counting the Human Cost, Oxford University Press, 2002, p. 79. 8 Ibid., p. 175. 9 Lumpe, op. cit., p. 14. 10 Recent relevant work has been done by the Center for Humanitarian Dialogue in Geneva, Switzerland. NGOs that testified at UN 2001 about civilian gun possession include: World Forum on the Future of Sports Shooting Activities (WFSA), Italy; British Shooting Sports Council (BSSC), UK; Canadian Institute for Legislative Action (CILA), Canada; Forum Waffenrecht (FW), Germany; National Rifle Association of America (NRA), USA; Single Action Shooting Society, USA; South Africa Gun Owners’ Association (SAGA), South Africa; Sporting Clays of America, USA; Sporting Shooters’ Association of Australia (SSAA), Australia; Fair Trade Group (FAIR), USA; Federation of European Societies of Arms Collectors (FESAC), the Netherlands; Safari Club International, USA; Domestic Controls of Small Arms: Million Mom March, USA; Ms Anna Ward, Unitarian Universalist Association, USA and Canada; Gun Free South Africa, South Africa. 11 Author’s confidential interview. 12 UNECOSOC, Report on the Sixth Session (28 April–9 May 1997), Economic and Social Council, Official Records, 1997, Supplement no. 10, E/1997/30, E/CN.15/1997/21, 1997. The set of components of the norm contained in this report is largely endorsed in Derek Miller et al., “Regulation of civilian possession of small arms and light weapons,” Biting the Bullet Briefing 16, 2001, 1–28; and also by Lumpe, op. cit., p. 15, where she recommends states to: “Adopt national regulatory regimes consistent with the 1997 UN Commission of Crime Prevention and Criminal Justice Resolution.” 13 Small Arms Survey, op. cit., p. 80. 14 Wendy Cukier et al., “Combating the illicit trade in small arms and light weapons: strengthening domestic regulation,” Biting the Bullet Briefing 7, 2001, 1–27. 15 Philip J. Cook, Stephanie Molliconi and Thomas B. Cole, “Regulating gun markets,” Journal of Criminal Law and Criminology, 86(1), September 1995, 59–91.

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16 For an excellent study that surveys the literature on this controversial issue, see Derek Miller et al., op. cit. 17 Small Arms Survey, “A common tool: firearms, violence, and crime,” Small Arms Survey 2004: Rights at Risk, Oxford University Press, 2004, pp. 173–211. This chapter explores this relationship and tries to assess whether the accessibility of firearms affects overall levels of violence, but with inconclusive results. 18 Lumpe, op. cit., p. 4. 19 Wendy Cukier, Tania Sarkar and Tim Quigley, “Firearm regulation: international law and jurisprudence,” Canadian Criminal Law Review, 6(1), December 2000, 99–123. 20 See online, available at: www.iansa.org/regions/namerica/montreal_anniversary.htm and www.iansa.org/campaigns_events/port_arthur_memorial.htm. 21 UNECOSOC, op. cit. 22 Cukier et al., op cit. 23 Ibid. The adoption of a value of non-violence as a result of gun-control measures can be seen currently in Brazil after the adoption of the Statute of Disarmament at the end of 2003, where awareness raising regarding disarmament and intense debate at all levels of Brazilian society can be perceived. See online, available at: www.soudapaz.org/instituto/default.asp and www.mj.gov.br/seguranca/desarmamento.htm. In addition, in UNECOSOC, Report of the Secretary-General on Measures to Regulate Firearms, Commission on Crime Prevention and Criminal Justice, Fifth Session, Vienna, 21–31 May 1996, E/CN.15/1996/14, 16 April 1996, sec. D: “Initiatives for firearms regulation at the national and regional levels,” para. 60, reads as follows: Argentina reported that a heated debate had been raging on the use by private persons of firearms for purposes of “legitimate defence”. The events prompting the controversy were a number of cases in which the victim of an offence – generally a robbery – reacted by firing at the offender. Those acts, in which people had taken justice into their own hands, had had a powerful impact on the public, dividing it into those who argued that such extreme behavior was justified and those who vigorously condemned it. A further result was that the whole issue of the effectiveness of firearms regulation had once again been brought to the fore, although concrete measures producing substantial changes had yet to be adopted. However, the issue had been firmly established in the realm of public opinion. 24 UN General Assembly, Guidelines for International Arms Transfers in the Context of General Assembly Resolution 46/36 H of 6 December 1991, May 1996. 25 UN, Supplement to an Agenda for Peace, A/50/60, S/1995/1, 3 January 1995. 26 UNECOSOC, Firearm Regulation for the Purpose of Crime Prevention and Public Health and Safety, E/1997/30, E/CN.15/1997/21, E/CN.15/1997/L.19/Rev.1, 1997. It was sponsored by Angola, Australia, Brazil, Brunei Darussalam, Burundi, Canada, Colombia, Croatia, Fiji, France, Gambia, Germany, Greece, Haiti, Italy, Japan, Lesotho, Malaysia, Mexico, Morocco, Netherlands, Philippines, Poland, Qatar, Republic of Korea, Romania, Russian Federation, Saudi Arabia, Sweden, Tanzania, Thailand and Tunisia. 27 Lumpe, op. cit., p. 14. 28 UNECOSOC, Criminal Justice Reform and Strengthening of Legal Institutions: Measures to Regulate Firearms, report of the Secretary-General, E/CN.15/1997/4, May 1997. 29 Ibid.: Thanks to the generous support of the Government of Japan, a project team was established as an advisory group to the Secretary-General, consisting of a projector coordinator and a research expert provided by the Government of Canada, governmental officials and representatives of the institutes comprising the UN Crime Prevention and Criminal Justice Programme network.

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30 Among them were the following (ibid., p. 4): (a) The P-8 Law Enforcement Conference on Illicit Traffic in Firearms, held in Tokyo from 12 to 14 November 1996, adopted a joint statement and expressed its support for the International Study on Firearm Regulation being undertaken pursuant to Economic and Social Council resolution 1995/27, section IV.A; (b) The International Criminal Police Organization (Interpol) invited the Crime Prevention and Criminal Justice Division of the Secretariat to give to the participants at the fourth International Symposium on Firearms and Explosives, held at Lyon, France, from 20 to 22 November 1996, a presentation on the progress being made on the International Study on Firearm Regulation; (c) The Customs Co-operation Council (also called the World Customs Organization) provided data on the number of firearms seized by customs in its member States and made useful comments on the further development of the database on the regulation of firearms; (d) The Inter-American Drug Abuse Control Commission (CICAD) of the Organization of American States, organized a number of important initiatives, including the Meeting of the Group of Experts on the Control of Arms and Explosives Related to Drug Trafficking, held at Caracas from 21 to 24 May 1996. The Meeting dealt with the status of the movement of illicit firearms and explosives and their impact on the security of individual member States; measures for the exchange of information regarding the illicit transnational movement of firearms and explosives; and the development of harmonized measures to control the importation and exportation of firearms and explosives; (e) The Central American Security Commission elaborated a draft regional agreement for mutual legal assistance with respect to illegal trafficking in weapons; (f) Various non-governmental organizations active in the field of firearm regulation contacted the Division with regard to the collection and provision of information on the regulation of firearms; (g) The Centre for Disarmament Affairs of the Secretariat and the UN Institute for Disarmament Research kept the Division informed of the progress made in disarmament affairs, especially the progress of the panel of governmental experts on small arms nominated by the Secretary-General pursuant to General Assembly resolution 50/70 B, so as to improve the efficiency of the study and avoid duplication of work. 31 Pursuant to UNECOSOC Resolution 1995/27, sec. IV A, paras 7 and 8, and on the recommendation of the UN Commission, UNECOSOC adopted the report of the Secretary-General, E/CN.15/1997/4, of May 1997. 32 “Summary of the International Study on Firearm Regulation,” included in the Secretary-General’s report, E/CN.15/1997/4, ibid. 33 Canada Firearms Center, online, available at: www.cfc-ccaf.gc.ca/pol-leg/international. 34 Elli Kytömäki and Valerie Yankey-Wayne, Implementing the United Nations Program of Action on Small Arms and Light Weapons: Analysis of the Reports Submitted by States in 2003, UNIDIR, October 2004, p. 30. 35 1999 Group Report, paras. 77–8: Recommendation 13. States emerging from conflict should, as soon as practicable, impose or reimpose licensing requirements on all civilian possession of small arms and light weapons on their territory.

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78. Several countries emerging from recent conflict have made substantial efforts in this regard, including Croatia, El Salvador, Georgia, Mali, Mozambique and South Africa. In many other cases, however, implementation of the abovementioned recommendation appears to have been of low priority or to have proved beyond the capacity of the relevant authorities. Where licensing requirements have been re-imposed, they have sometimes not been sufficiently stringent to place substantial limits on the availability of small arms and light weapons. 36 Bamako Declaration, para. 3, sec. III. 37 Ibid., sec. IV. 38 Firearms Protocol, art. 8, “Marking of Firearms”: 1. For the purpose of identifying and tracing each firearm, States Parties shall: . . . (c) Ensure, at the time of transfer of a firearm from government stocks to permanent civilian use, the appropriate unique marking permitting identification by all States Parties of the transferring country. 39 Small Arms Survey database, online, available at: www.smallarmssurvey.org/Database.html, “Government Documents and Statements,” “Program of Action Compilations,” “Final Compilation Section II and Addendum 1.” 40 Ibid. 41 UN General Assembly, Report of the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 9–20 July 2001, A/CONF.192/15, July 2001. 42 SADC Protocol, art. 5, “Legislative Measures”: 1. State Parties shall enact the necessary legislation and take other measures to establish as criminal offences under their national law to prevent, combat and eradicate, the illicit manufacturing of firearms, ammunition and other related materials, and their excessive and destabilizing accumulation, trafficking, possession and use ... 3. State Parties further undertake to incorporate the following elements in their national laws as a matter of priority: a) the prohibition of unrestricted possession of small arms by civilians; b) the total prohibition of the possession and use of light weapons by civilians; . . . 43 SADC Protocol, art. 16, “Transparency and Information Exchange”: State Parties undertake to: a) develop and improve transparency in firearms accumulation, flow and policies relating to civilian owned firearms . . . 44 Chair’s Summary of the International Meeting on the Regulation of Civilian Ownership and Use of Small Arms, Rio de Janeiro, 16–18 March 2005, online, available at: www.hdcentre.org/?aid⫽125. 45 Small Arms Survey database, op. cit., “Statements” and “Governmental Documents” between January and July 2001, the months that preceded UN 2001. 8 BANNING THE SALE OF WEAPONS TO NON-STATE ACTORS 1 The term “non-state actors” is used to denote groups that are armed, use force to achieve their objectives and are not under state control. This definition is from David

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3

4

5 6

7

8 9 10 11 12 13 14 15 16

Petrasek and Katharine Mann, Ends and Means: Human Rights Approaches to Armed Groups, International Council on Human Rights Policy, 2001, p. 5. Christopher Smith, “Light weapons and the international arms trade,” in UNIDIR, Small Arms Management and Peacekeeping in Southern Africa, UNIDIR, 1996, especially pp. 14–19. Also from Smith, see: “Light weapons and ethnic conflict in South Asia,” in Jeffrey Boutwell, Michael Klare and Laura W. Reed (eds), Lethal Commerce: the Global Trade in Small Arms and Light Weapons, American Academy of Arts and Sciences, 1995, pp. 61–80. See Michael Renner, “Small arms, big impact: the next challenge of disarmament,” World Watch Paper, no. 137, World Watch Institute, October 1997, pp. 32–3. For commercial or ideological reasons, this list includes Russia’s aid to the PKK in Turkey; Uganda’s and the United States’s support for rebels in southern Sudan; Sudan’s support for rebels in northern Uganda; Uganda’s support for rebels in Angola; Turkish support for rebels in Chechnya; support by Greece, Syria, Armenia and Russia for Kurdish guerrillas in Turkey; official Pakistani aid to Kashmiri militants; official or popular Indian support for Tamil fighters in Sri Lanka; French government support for the ex-armed forces in Rwanda and for the Interhamwe militia; and the multiple regional states sponsoring multiple warring militias in Central Africa; see Lora Lumpe and Lucy Mathiak, “Government gun-running to guerrillas,” in Lora Lumpe (ed.), Running Guns: the Global Market in Small Arms, Zed Books, 2000, p. 67. There is very little scholarly analysis on this particular subject linking it to the norm-building discussion. Lumpe and Mathiak and David Capie’s piece fill this lacuna and this chapter draws largely on their articles. David Capie, “Armed groups, weapons availability and misuse: an overview of the issues and options for action,” background paper for the meeting organized by the Center for Humanitarian Dialogue in Bamako, Mali, 25 May 2004 with the support of the Governments of Canada, Norway, Switzerland and Mali, p. 6. Small Arms Survey, Small Arms Survey 2002: Counting the Human Cost, Oxford University Press, 2002, p. 129. Nicolas Florquin and Eric G. Berman (eds), Armed and Aimless: Armed Groups, Guns, and Human Security in the ECOWAS Region, Small Arms Survey, May 2005, p. 387. These authors recognize that the main source of weapons to non-state actors operating in this region is re-circulation of weapons (see Chapter 3). Reinhilde Weidacher, Behind a Veil of Secrecy: Military Small Arms and Light Weapons Production in Western Europe, Small Arms Survey, November 2005. Weidacher surveys 15 countries, demonstrating that small-arms producers in Western Europe are now even less transparent than before the heightened international smallarms debate (see Chapter 5). Canada, Ministry of Foreign Affairs, “A proposed global convention prohibiting the international transfer of military small arms and light weapons to non-state actors,” discussion paper, 1998. Ibid. Lloyd Axworthy, speech to the Small Arms Conference organized by Project Ploughshares, Orillia, Ontario, 19 August 1998. Canada, Ministry of Foreign Affairs, ibid. The hypothetical norm in this chapter is based upon the elements contained in this document. Lora Lumpe, “Curbing the proliferation of small arms and light weapons,” Security Dialogue 30(2), June 1999, 151–64. Aaron Karp, “Arming ethnic conflict,” Arms Control Today, September 1993, 13. Capie, op. cit., p. 12. Ibid., p. 14. Ibid.

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17 Lumpe and Mathiak, op. cit., p. 55. 18 Ibid., p. 71. 19 Emanuela-Chiara Guillard, “What’s legal? What’s illegal?” in Lumpe, 2000, op. cit., p. 29. 20 Ibid. 21 Security Council Resolutions S/PRST/2004/1 of 19 January 2004, S/2003/1217 of 31 December 2003, S/PRST/2002/30 of 31 October 2002, S/PRST/2001/21 of 31 August 2001 and S/PRST/1999/28 of 24 September 1999. 22 Guillard, op. cit. 23 Human Rights Watch, World Report 2004: Human Rights and Armed Conflict, Human Rights Watch, 2004, p. 220. 24 ILO, Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, C182, 1999. 25 Amnesty International, “USA leads in blocking efforts to stop use of child soldiers,” Amnesty International Index, IOR 42/006/1999, 10 June 1999. The other countries were Australia, Austria, Belgium, Finland, Germany, Hungary, Ireland, Luxembourg, the Netherlands, New Zealand, Portugal, San Marino, Sweden, Turkey and the UK. 26 Edward Peartree, Bureau of Political–Military Affairs, US Department of State, “US views: ban on transfers of small arms and light weapons to non-state groups,” remarks at a follow-up meeting on the UN Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects, Tokyo, 24 January 2002. 27 UN Security Council Resolution S/RES/1373, 28 September 2001, para. 2. 28 Peartree, op. cit. 29 Barbara Frey, Progress Report on the Prevention of Human Rights Violations Committed with Small Arms and Light Weapons, E/CN.4/Sub.2/2004/37, report of the Sub-Commission on the Promotion and Protection of Human Rights, fifty-sixth session, 2004. 30 Ibid. 31 Lumpe and Mathaik, op. cit., p. 76. 32 Lumpe, 1999, op. cit. 33 BASIC, “Insufficient support for convention idea,” Newsletter on International Security Policy, no. 65, 14 August 1998: A Canadian proposal to develop a convention prohibiting international transfers of small arms to non-state actors met with a lackluster response. In an interview with BASIC Reports, the head of the UK delegation, Paul Hare, agreed, noting that there was merit in the Canadian proposal, but cautioning against “attributing too much importance to the legal trade”. 34 35 36 37 38 39 40 41 42 43

Lumpe and Mathiak, op. cit., p. 74. Axworthy, op. cit.; Canada, op. cit. Lumpe, 2000, op. cit. EU Joint Action, art. 3(b). Author’s interview with Edward Laurance, Geneva, 2 December 2002. See Small Arms Survey database, online, available at: www.smallarmssurvey.org/ Database.html, “Government Documents and Statements,” “Country Statements” and “Compilations of UN 2001.” Ibid., “Final Compilation Section II,” “Country Statements” and “Compilations of UN 2001.” Lawrence Auster, “Global gun controllers surrender to US,” NewsMax.com, 24 July 2001. Peartree, op. cit. UN General Assembly, Report of the UN Conference on the Illicit Trade in Small

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Arms and Light Weapons in All its Aspects, New York, 9–20 July 2001, A/CONF. 192/15, 2001. 44 Auster, op. cit. 45 Ibid. 46 Owen Greene, “Small arms consultative group process – small arms and light weapons transfers: developing understandings on guidelines for national control and transfers to non-state actors,” Chair’s Interim Report, 2004, 1–24. 9 THE MAKING OF INTERNATIONAL NORMS 1 Michael Klare, “Light weapons diffusion and global violence in the post Cold War era,” in Jasjit Singh (ed.), Light Weapons and International Security, Pugwash Conferences on Science and World Affairs, British American Security Information Council, Indian Pugwash Society, and Institute for Defense Studies and Analyses, 1995. 2 David Meddings, Statement of the World Health Organization to the Second Biennial Meeting of States to Consider the Implementation of the Program of Action, New York, 11–15 July 2005, p. 2. 3 Ibid., p. 3. 4 Martha Finnemore, National Interests in International Society, Cornell University Press, 1996, p. 72. 5 For an analysis of small arms within a global public policy framework, see Edward Laurance and Rachel Stohl, Making Global Public Policy: the Case of Small Arms and Light Weapons, Small Arms Survey, 2002. 6 Author’s interview with Edward Laurance, 2005. 7 For an excellent discussion of the linkages between small-arms availability and development, see Small Arms Survey, “Obstructing development: the effects of small arms on human development,” in Small Arms Survey 2003: Development Denied, Oxford University Press, 2003, pp. 125–67. 8 Keith Krause and Oliver Jütersonke, “Peace, security and development in postconflict environments,” Security Dialogue 36(4), December 2005, 447–62, p. 455. 9 UN High-Level Panel on Threats, Challenges and Change, A More Secure World: our Shared Responsibility, A/59/565, 2 December 2004. 10 Ibid., para. 275. 11 For an enthralling discussion of the current debate on the use of force and the erosion of the norm of sovereignty, see Jutta Brunnee and Stephen J. Toope, “Slouching towards new ‘just’ wars: the hegemon after September 11th,” International Relations 18(4), 2004, 405–23. 12 Wendy Cukier, “Small arms and light weapons: a public health approach,” Brown Journal of World Affairs 9(1), Spring 2002, 270–1. 13 Small Arms Survey, Small Arms Survey 2005: Weapons at War, Oxford University Press, 2005, p. 98. 14 United Nations, First Biennial Meeting of States to Consider the Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 7–11 July 2003, A/CONF.192/BMS/2003/1, 18 July 2003; Second Biennial Meeting of States to Consider the Implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All its Aspects, New York, 11–15 July 2005, A/CONF.192/BMS/2005/1, 19 July 2005. 15 See online, available at: www.osce.org/publications/fsc/2003/12/10621_29_en.pdf. 16 See online, available at: www.osce.org/documents/fsc/2003/11/1379_en.pdf. 17 See online, available at: www.osce.org/documents/fsc/2002/11/1166_en.pdf. 18 See online, available at: www.nbisecsalw.org.

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19 See Dinah Shelton (ed.), Commitment and Compliance: the Role of Non-binding Norms in the International Legal System, Oxford University Press, 2003, pp. 12–15. 20 UN General Assembly Resolution A/C.1/60/L.55 of 12 October 2005. 21 Kenneth W. Abbott and Duncan Snidal, “Hard and soft law in international governance,” International Organization 54(3), 2000, 421–56. 22 Christine Chinkin, “Normative development in the international legal system,” in Shelton, op. cit., p. 42. 23 Richard Williamson, “Multilateral arms control,” in Shelton, op. cit., pp. 517–21. 24 Researchers are usually preoccupied with the long-term processes of the “norm life cycle,” consequently focusing on normative change that may take several years to unfold. The present book is no different. 25 Shelton, op. cit.; Thomas Risse, “Constructivism and international institutions: toward conversations across paradigms,” in Ira Katznelson and Helen V. Milner (eds), Political Science: the State of the Discipline, Norton, 2002, pp. 597–629; Antje Wiener, “Contested compliance: interventions on the normative structure of world politics,” European Journal of International Relations 10(2), 189–234; Antje Wiener, “Constructivism: the limits of bridging gaps,” Journal of International Relations and Development 6(3), 252–75. 26 I wish to thank Edward Laurance for bringing this particular concern (and many others) to my attention. 27 See in particular Charlotte Watson et al., International Action on Small Arms: Examining Implementation of the Program of Action, Biting the Bullet Project, 2005. 28 Ibid. 29 Shelton, op. cit., p. 554. 30 Shelton, op. cit., p. 556. 31 For an in-depth discussion of the relationship between NGOs and soft law, see Edith Brown Weiss, “Conclusions: understanding compliance with soft law,” in Shelton, op. cit., p. 553. 32 Abram Chayes and Dinah Shelton, “Multilateral arms control,” in Shelton, op. cit., p. 532. 33 This is also the case for landmines; see Richard Price, “Reversing the gun sights: transnational civil society targets landmines,” International Organization 52(3), 1998, 613–44. 34 Chayes and Shelton, op. cit., p. 532. 35 For a classic analysis of Henri Dunant as norm entrepreneur, see Finnemore, op. cit. 36 Contrarily to what the theory espouses, only in one out of the six norm-formation case studies examined here can the successful influence of norm entrepreneurs be seen (the case of the norm on regulating weapons-brokering activities). In another case, the efforts of the norm entrepreneur were not successful, even if there was a previously existing enabling normative framework (the case of the ban of the sale of weapons to non-state actors). Four out of six case studies had to reject the widely held theoretical assumption that norm entrepreneurs are key to norm building in the first stage of norm formation. Finally, two of the most robust emerging international norms on small arms (weapons destruction, and weapons marking and tracing) did not involve any norm entrepreneurs in the norm-diffusion processes. In the case of brokers, the role of two important norm entrepreneurs was central in the learning processes that led up to norm building. Individuals like Brian Wood and Loretta Bondi were key in advocating norm building on controlling illicit arms brokering. Their work, together with that of powerful advocacy NGOs, especially Human Rights Watch and Amnesty International, was central in putting illicit brokering on the international security agenda. Differently, in the case of civilian gun ownership, there is an absence of particular individuals who were forerunners of norm advancement, and learning processes for normative change actually occurred within the UN. The same

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37 38

39

40 41

can be said regarding the absence of the leadership of norm entrepreneurs in the development of a norm regarding transparency. As demonstrated in the norms on weapons destruction, brokers and weapons marking. Another noteworthy tenet of the literature is that a norm can originate either from the quality of the norm itself or from the norm entrepreneur promoting it. Therefore, due to qualities of influence and popularity of either the norm promoter or the norm itself, a state might be influenced to accept a norm. However, the present study found that the only instance of an eminent norm entrepreneur diffusing a norm was the case of the norm on banning the sale of weapons to non-state actors, which actually failed to diffuse. The only successful case of individual norm entrepreneurship seen here stemmed not from the qualities of prominence of famous entrepreneurs, but rather from their hard advocacy (see Chapter 4). The prestige of those opposing a norm can also generate results, as when the United States’s opposition to the norms on regulating civilian gun possession regulation and banning the sale of weapons to non-state actors at UN 2001 resulted in their not being included in the Program of Action. This assumption, widely held in the literature, is contested here. There was no previously existing normative framework in place for the origins of the new norm on the need to control brokering activities, for instance. There was a complete vacuum of state practice, and yet, as demonstrated, a norm is emerging to deal with the illicit activities of arms brokers. In another instance, despite the multiple sources of international law constituting a normative context in which the norm on banning the sale of weapons to non-state actors could flourish, the norm failed to diffuse. The only instance where this tenet could be accepted was in the development of the norm on transparency, which, although weak, did not diffuse in a vacuum. There was an enabling supporting ideational context that supported the appearance of the norm. Among other elements, the UN Register on Conventional Arms Transfers to a certain extent paved the way for an emerging norm on transparency on small-arms transfers. It can be said that transparency found an advantageous condition of legitimacy under the non-discriminatory rules promoted by multilateralism. Defined here as consistent and systematic efforts to generate credible information and teach other actors about the need for change. In other instances of norm formation analyzed here, for instance, regarding the norm on weapons destruction, there were two developments that contributed to catalyze development as a norm at the global level. One was the actions taken by Mali in its post-conflict situation in the mid-1990s, and the other was the unrest in Albania in 1997. Even though such events contributed to the acceleration of norm formation and to developing awareness regarding certain aspects of problems, they were hardly “catalyzing events” as the literature suggests, especially because the norm on destruction took the whole of the 1990s to develop, in a gradual process of change in state practices. By the same token, the Gulf War in 1991 was the catalyzing event for supporting the development of greater transparency in conventional arms transfers. Some observers say that this represented an outstanding breakthrough, as it was the first time that governments had made such data public since the 1930s. In the aftermath of the Iraqi invasion of Kuwait, the UN Register of Conventional Arms was established as an important contribution to the future development of transparency in small-arms transfers. These two events accelerated a process that was already underway within the UN with the appearance of the Study on Ways and Means of Promoting Transparency in International Transfers of Conventional Arms and its Implications to Norm Development on Transparency, which implemented the UN Register on Conventional Arms. However, the Gulf War per se cannot be considered a shock event, as the UN Study was already underway before the war, and other systemic factors, like multilateralism, as mentioned, also accounted for the gradual development of the norm on transparency.

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42 The norm that post-conflict, surplus or illicit weapons must be destroyed began as a practice that slowly started to be embedded as a norm. Hence, the concrete practice of destroying weapons under certain conditions became the “norm,” a widely endorsed practice among states. Another example illustrates how complex and multi-layered norm making is nowadays. When it was recognized that illicit brokering activities were being carried out using loopholes in the law, or when law did not exist, causing untold human suffering, and the issue started assuming importance, there was a process of coalition building between non-governmental actors and the Norwegian government that was instrumental in catalyzing the generation of authoritative information to a wider audience of interested “like-minded” governments. 43 Switzerland and France spearheaded the most important policy initiatives contributing to advance norm building on weapons marking at the international level. This process of norm development is noticeably distinct from the other cases analyzed here, in the sense that there was a relative convergence of positions among the actors. This congruence of opinions combined with a strong regional normative development, notably in Europe and in the American hemisphere, which, together with the activism of Switzerland and France, worked for a vigorous norm-building process. The third-most-robust norm seen here is the one controlling the activities of illicit arms brokers. The role played by like-minded states in advancing normative change was carried out through the sponsorship of the production of knowledge, especially in the case of Norway. The role of like-minded states was important in financing information production and dissemination, even though it was basically an auxiliary role and not as central as that of the NGOs in the norm-building process. 44 Of the six norm-emergence cases studied here, the second-most-vigorous emerging norm had states as the most important norm makers (weapons marking). The central role of states in advancing norm building is contained in the second hypothesis guiding this research, namely, that the influence and role of a coalition of like-minded states is stronger than other actors in advancing norm building. The most robust norm (weapons destruction) had both states and non-state actors as equally important norm makers. In the norm on brokers, the third strongest, states had a subsidiary role, that of financing knowledge generation. 45 Unlike the case of reining in the activities of illicit brokers, where Norway and Canada formed a coalition that advanced norm building, regarding the emerging norm on weapons destruction, the UN was the main site where norm building was encouraged and promoted, as the state initiatives were carried out in the context of the UN, such as those of the GIS, which was key to funding arms-destruction initiatives. The UN and other regional forums as key sites for norm building are also central in norm building on brokers (especially after 2001), civilian possession, and marking and tracing. 46 Keith Krause, “Norm-building in security spaces: the emergence of the light weapons problematic,” GERSI/REGIS Working Papers, 2001; Richard Price, “Reversing the gun sights: transnational civil society targets landmines,” International Organization 52(3), 1998, 613–44; Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics, Cornell University Press, 1998; Peter Haas, “Epistemic communities and international policy coordination,” International Organization 46(1), 1992, 1–35. 47 The norm on banning the sale of weapons to non-state actors failed to diffuse because it had only one of these groups espousing it, namely, a norm entrepreneur, whereas the norm on weapons marking and tracing, weapons destruction, brokers and civilian possession had at least two groups advocating for norm building, and they diffused vigorously. This is also the case for landmines. 48 This is exactly the case of the Small Arms Survey, based in Geneva, but coordinating an international network of researchers across the world.

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49 The UN was the main site for norm building in three of the six norm-building cases examined here (weapons destruction, civilian gun possession and transparency) and now serves as the main site for norm consolidation in the case of weapons marking. The regional organizations examined here (OSCE, OAS, SADC, RECSA) all treat small arms as separate agenda items. 50 The UN is the prime site for norm development regarding gun civilian ownership. For over a decade, the UN has sought to appeal, principally through the work of the UN Crime Prevention and Criminal Justice Commission, for the importance of setting up standards to overcome the absence of harmonization of regulations among countries. The work of this commission was instrumental in developing the first international binding instrument to address the import, export and in-transit movement of firearms as part of the Firearms Protocol, analyzed here. The commission’s work, backed by the Governments of Japan and Canada, was central to enabling an active process of norm development on civilian gun ownership, and by 1997, this was the most robust norm on small arms. However, at that point, the momentum of this norm largely collapsed, and it failed to diffuse at the international level. 51 This can be attested in all the norms studied here, through the reports of the Panel/Group of Governmental Experts, and in many other initiatives discussed here. The 1997 Panel Report and 1999 Group Report represent key documents in norm building with regard to the small-arms issue in general. 52 UN General Assembly, Report of the Group of Governmental Experts Established Pursuant to General Assembly Resolution 54/54 V of 15 December 1999, Entitled “Small Arms,” A/CON.192/PC33, 12 March 2001. This can also be seen in the case of transparency. Even though the norm on transparency had a weak pattern of normative diffusion, the UN played a prime role in advancing it. The UN Study is the single most important UN research and policy document on transparency and illicit arms trafficking, setting the stage for the development of a norm regarding transparency in conventional arms transfers. Despite previous unsuccessful initiatives within the UN to promote transparency in conventional arms transfers, this study contained a practical recommendation for the creation of the UN Register of Conventional Arms Transfers, with wide repercussions not only for changing state practice, but also for promoting normative change regarding arms transfers. 53 The UN was in a learning curve, and in the process of negotiating and implementing peace accords to end armed conflicts, placed a high priority on weapons collection and management issues. In the case of the norm on weapons destruction, besides the Mali initiatives at the regional West Africa level, there was mounting awareness of the importance of a practical disarmament component in peace-keeping operations and in conflict prevention as well. In this important relationship between demobilization and disarmament on the one hand and conflict resolution on the other, the UNIDIR studies (see Chapter 3) were instrumental in examining a number of concrete case studies addressing the role of demobilization and disarmament in conflictprevention strategies, and also in playing an important role in knowledge generation with the series of books on the UN-led management of weapons and the arms-related dimensions of peace-keeping in post-conflict situations. 54 The Program of Action contains an entire section entitled “At the Regional Level,” and its paragraph 24 calls for states: “To establish or designate, as appropriate, a point of contact within subregional and regional organizations to act as liaison on matters relating to the implementation of the Programme of Action.” 55 UN General Assembly, Supplement to an Agenda for Peace, A/50/60, S/1995/1, 3 January 1995, para. 60. 56 Ibid.

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APPENDIX: ACTIVISM AND NORM BUILDING – “PRO” AND “ANTI” GUN NGOS 1 In the wake of the Oklahoma City bombing, the NRA faced intense public scrutiny and widespread criticism for its extremist views against law enforcement. “NRA membership dropped and President Bush resigned his life membership after it was revealed that the NRA had called the Bureau of Alcohol, Tobacco and Firearms agents ‘jackbooted thugs’ in a fundraising letter”; see the Brady Campaign to Prevent Gun Violence website, online, available at: www.bradycampaign.org/action/. 2 Online, available at: www.nraila.org/Issues/Articles. 3 Don B. Kates, “Gun control equals gun prohibition,” online, available at: www.nraila.org/Issues/Articles. 4 Keith Krause, “Multilateral diplomacy, norm-building and UN conferences: the case of small arms and light weapons,” Global Governance 8(2), 2002, 258. 5 Law No. 10.826, December 22 2003. Dispõe sobre registro, posse e comercialização de armas de fogo e munição, sobre o Sistema Nacional de Armas. 6 This section is based largely on the author’s interview with Antonio Rangel, coordinator for disarmament, Viva Rio, Rio de Janeiro, Brazil, December 2004.

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Ruggie, John G., Constructing the World Polity: Essays on International Institutionalization, Routledge, 1998. Rutherford, Kenneth R., Brem, Stefan and Matthew, Richard A., Reframing the Agenda: the Impact of NGO and Middle Power Cooperation in International Security Policy, Greenwood, 2003. Schroeder, Matthew, “Small arms, terrorism and the OAS firearms convention,” Occasional Paper Series, Federation of American Scientists, March 2004. Shelton, Dinah (ed.) Commitment and Compliance: the Role of Non-binding Norms in the International Legal System, Oxford University Press, 2003. Slaughter, Anne-Marie, Tulumello, Andrew S. and Wood, Stepan, “International law and international relations theory: a new generation of interdisciplinary scholarship,” American Journal of International Law 92(3), 1998, 367–97. Small Arms Survey, “Moving from action to words: small arms norms,” Small Arms Survey 2003: Development Denied, Oxford University Press, 2003. —— Small Arms Survey 2005: Weapons at War, Oxford University Press, 2005. Smith, Jackie and Pagnucco, Ron, with Lopez, George A., “Globalizing human rights: the work of transnational human rights NGOs in the 1990s,” Human Rights Quarterly 20, 1998, 379–412. Spiro, Peter J., “New global communities: nongovernmental organizations in international decision-making institutions,” Washington Quarterly 18(1), 1994, 45–56. Szasz, Paul C., “International norm-making,” in Edith Brown Weiss (ed.), Environmental Change and International Law: New Challenges and Dimensions, UN University Press, 1992. Tannenwald, Nina, “The nuclear taboo: the United States and the normative basis of nuclear non-use,” International Organization 53(3), 1999, 433–68. Thomson, Janice E., “State practices, international norms, and the decline of mercenarism,” International Studies Quarterly 7, 1990, 23–47. Wendt, Alexander, Social Theory of International Politics, Cambridge University Press, 1999.

256

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Abbot, Kenneth W. 213n18 “acknowledgement of the problem” path 34 activists 21, 25, 40, 161 actors: in norm creation 12, 13, 23–6 “adjacency claims” see path dependence advocacy: individual 27 Afghanistan 45, 177, 180 Africa 40, 55, 85, 89, 155, 173 African countries: supply of arms to nonstate actors 186, 187 AIDS 30 Albania 9, 77, 79, 83, 88, 89, 249n41 Albi, Count 125 American law: illicit arms brokering 96–7, 98–9 Amnesty International 93, 94, 102, 113 Angola 67, 72, 75, 93, 180 An International Agenda on Small Arms and Light Weapons: Elements of a Common Understanding, Concerns and Challenges 48 Annan, Kofi 145 Arab group 155 Arias Foundation 162 Arias, Oscar 157 “Arming ethnic conflict” 38 “Arming genocide in Rwanda” 39 arms brokers 10, 14, 36, 105, 229n1; see also illicit arms brokering arms-control arrangements: new paradigm 34–5; since the end of the Cold War 29–34; traditional 145–6; and transparency 142–3 arms dealers: definition 95 arms diffusion 41–2 arms embargoes 93

arms-export reports 153 arms exports 53–4 arms fixers 229n1; see also arms brokers The Arms Fixers 100, 102 arms pipelines 177 arms proliferation: Africa 40 “The arms revolution: the major impact of small arms” 39 arms suppliers 36 arms supply: channels of 39 arms supply to non-state actors: entrepreneurship 183–4; general 177; international norm development 179–82; norm diffusion 184–9; norm emergence 178–9; reasons for ban 182–3 arms trade 31–4 arms-trade patterns 34, 38 Arms Trade Treaty (ATT) 157 arms traffickers 229n1; see also arms brokers arms trafficking: international xix arms transfers: state-to-state 35–6; and transparency 143; UN resolutions 43 Article 38(1): Statute of the International Court of Justice 8 Article 51: UN Charter 37 Asia 56–7 Assistance to States for Curbing Illicit Traffic and Small Arms and Collecting Them 45, 78 ATT (Arms Trade Treaty) 157 Austin, Kathi 103 Australia 86, 112, 164, 172 availability xv, xvii, 3, 35, 39, 198 Axworthy, Lloyd 49, 51, 178, 183–4, 188, 204

257

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Bamako Declaration: civilian gun ownership 170; illicit brokering 110–11; and Mali 78; regional document 55, 56; and South Africa 70; supply of arms to non-state actors 186; transparency 155; weapons destruction 85 BASIC (British American Security Information Council ) 50, 76, 121 Batchelor, Peter 240n49 Belgium 149, 153 Belgium meeting 49 Berkol, Ilhan 230n7 Best Practice Guidelines for Exports of Small Arms and Light Weapons 147 BICC (Bonn International Conversion Center) 50, 75, 88 Biennial Meetings of States (BMSs) 59–60 Biting the Bullet Project 61, 76, 121–3, 132, 133, 157, 189, 201, 202 Biting the Bullet Report 158 BMSs (Biennial Meetings of States) 59–60 Boese, Wade 239n37 Bondi, Loretta 102–3, 229n5, 230n26 Bonn International Conversion Center (BICC) 50, 75, 88 Bosnia and Herzegovina 67 Bout, Victor 10 Boutwell, Jeffrey 40 Bradford University 201, 235n15 Brasilia Declaration: brokering 110; civilian gun ownership 170; regional document 55; supply of arms to nonstate actors 186; transparency 155; weapons destruction 85 Brazil: civilian gun ownership 161, 174; gun law 162; regional norm building 61; sale of weapons to non-state actors 186; small-arms exporters 149; transparency 155; Viva Rio 209–10; weapons destruction 59, 71, 74 British American Security Information Council (BASIC) 50, 76, 121 brokers 229n1; see also arms brokers Brussels Call for Action 49 Buergenthal, Thomas 230n25 Bulgaria 75, 93, 94 Byers, Stephen 91 Canada: approach to proliferation 183–4; civilian gun ownership 162; coalition of like-minded states 46; gun laws 164; human security 30; illicit brokering 102, 112; marking small arms 127, 131–2;

supply of arms to non-state actors 187; transparency 149, 155; weapons destruction 86 Canada meeting 49 Capacity Development for Reporting to the United Nations Program of Action on Small Arms 60 Caribbean states 55, 59 Cattaneo, Silvia 230n19 Central America 82 Central Intelligence Agency (CIA) 177 Centre for Humanitarian Dialogue 174, 241n10 CGP (Consultative Group Process) 157, 189 Chayes, Abram 218n11, 248n34 Chayes, Antonia 218n10, 218n11 Chemical Weapons Convention 146 child soldier use 180 China 71, 86, 112, 114, 131, 149, 155 Chinkin, Christine 8 Christian Council of Mozambique 73 CIA (Central Intelligence Agency) 177 circuitous avenues: to norm building 205–8 city violence 66 civilian gun ownership: Biennial Meetings of States 60; domestic law 163–5; failed norm 10; institutional norm building 167–74; international legislation 160–1; international norm development 165–7; like-minded states 175–6; mechanisms of norm diffusion 174–6; national legislation 160–1; NGOs 175; norm emergence 27; norm promotion 22; Oslo meeting 48; UN study 165–7; USA xix; and violence 163–4 civilian possession of arms see civilian gun ownership civil society actors 202 civil society initiatives 73–4 “CNN effect” 143 coalition: of like-minded states 46–9, 88–9, 99–101, 206 coalition building 204, 208 COARM (Council of the EU Working Group On Conventional Arms Exports) 153 Code of Conduct: EU 53–4 codes of conduct 48 coherence: norm diffusion 20, 23 Cold War: end of 31–4 Colombia 43, 44–5, 75

258

INDEX

A Common Position on the Control of Arms Brokering 115 communication: and transparency 143 compliance 6, 142–3, 201–2 Conference on Disarmament (UN) 139 Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects (2001) 8, 12, 22, 35, 52, 76, 108, 110 conflict prevention xv conflicts: intrastate 32 construction of cognitive frameworks 23 constructivist studies 14–15, 202–9 Consultative Group Process (CGP) 157, 189 Contras 75 Conventional Armed Forces in Europe Treaty 68 conventional arms trade epistemic community 35–43 Convention on Transnational Organized Crime 165 conversion 68 Council of the EU Working Group On Conventional Arms Exports (COARM) 153 crime prevention report 162 Croatia 67, 170 Cukier, Wendy 247n12 customary international law 8, 98 Cyprus 149 Dahinden, E. 34 data processing centers 154 dealers 229n1; see also arms brokers death tolls: reduction of xv; from small arms xviii demobilization 67 democratization: and transparency 142, 143 Dhanapala, Jayantha 79 diffusion, norm see norm diffusion “Diffusion of small arms and light weapons in Pakistan and Northern India” 39 Dikshit, Prashant 39 disarmament 30, 67, 71–5 disarmament negotiations: changes in 29–30 domestic abuse 164 domestic legitimation: norm diffusion 21

DRC (Democratic Republic of Congo, formerly Zaire) 94 Dunant, Henry 202 Eastern European countries 66–7 Ecole Polytechnique shooting 164 Economic Community of West African States (ECOWAS) 77, 78, 177 economic globalization 143 ECOWAS (Economic Community of West African States) 77, 78, 177 Elements for Effective Legislation on Brokering 116 El Salvador 67, 72, 170 emerging norms 6–9, 11, 69 eminent persons group (EPG): weapons marking and tracing 124–6 emulation 18, 28 entrepreneurs, norm see norm entrepreneurs EPG (eminent persons group): weapons marking and tracing 124–6 epistemic communities 24–5, 34, 35–43, 219n20 ethnic conflict 41, 83 EU (European Union): arms register 143; norm development 58; sale of arms to non-state actors 177; surplus weapons 86–7; transparency 155 EU Code of Conduct 53–4, 108, 152–3, 158; arms transfers to non-state actors 180, 181–2; civilian gun ownership 170; supply of arms to non-state actors 184–6 EU Joint Action (European Union Joint Action on Small Arms) 54, 83, 108, 152, 170, 180, 184–6 European Union see EU (European Union) exchanges of information 156 export controls 148 exporters: small arms 149 export licenses 96, 149 export reports 149 extradition 108 Farabundo Marti National Liberation Front (FMLN) 75 female circumcision 20 Finel, Bernard 238n17 Finnemore, Martha 17, 18, 21, 27, 211n5, 247n4 Firearm Regulation for the Purpose of Crime Prevention and Public Health and Safety 165

259

INDEX

Guidelines for International Arms Transfers (UN Guidelines) 44, 98, 165 Guillard, Emanuela-Chiara 180 Gulf War 249n41 Gun Free South Africa 162 gun ownership see civilian gun ownership gun-violence reduction policies 163–5

Firearm-related Violence 212n6 Firearms Protocol: brokering 111; civilian gun ownership 170–2; criminal activities 119; illicit brokering 105–7, 108; international document 7–8; and OAS 53; scope 57–8; supply of arms to non-state actors 186; transparency 155; UN Commission 166; weapons destruction 85; weapons marking 130–1 fixers 229n1; see also arms brokers FMLN (Farabundo Marti National Liberation Front) 75 FN Herstal 76 France 93, 119, 133, 250n43 Franco-Swiss initiative: weapons marking and tracing 119–21 freedom fighters 186 Frey, Barbara 181 Fund for Peace 92 funding instruments: weapons destruction 74–5 Geneva Convention 18, 181 genocide 10, 14, 23, 39, 93–5, 102 Georgia 170 Germany 84, 149, 153 Ghali, Boutros-Boutros 165 GIAT Industries 76 GIS (Group of Interested States) 74, 75, 78, 83, 89 global governance xvii, xx globalization: and transparency 142, 148 global media 143 global norm-development analysis: threetiered method 11–14 global problems xviii Goose, Stephen 39 Gramsh Pilot Project 79 Greene, Owen 240n49 Group for Research and Information on Peace and Security (GRIP) 121, 133 Group of Governmental Experts on Small Arms (Group Report 1999) see Group Report (1999) Group of Interested States (GIS) 74, 75, 78, 83, 89 Group Report (1999): civilian gun ownership 167–71; illicit brokering 105, 109–10; international document 52; as norm setter 53; supply of arms to nonstate actors 184; transparency 151, 152; weapons destruction 83–4; weapons marking 126, 127

hard advocacy 22, 27 hard law 8 Haug, Maria 240n46 Heckler & Koch 76 High-Level Panel on Threats, Challenges and Change 196 homicide rates 163 humanitarian campaigning 148 humanitarian law: respect for 48 humanitarian norms xix–xx human rights laws: arms supply to nonstate actors 181 human rights norms 179 human rights protection 30, 198 Human Rights Watch 50, 93, 94, 102, 113 human security 29–30, 33–4 IAEA (International Atomic Energy Agency) 143 IANSA (International Action Network on Small Arms) 20–1, 25, 49–50, 74, 125, 162, 204 ICBL (International Campaign to Ban Landmines ) 4, 18, 20–1, 28, 201 IHL (international humanitarian law) 178, 181 ILC (International Law Commission) 98 illicit arms brokering: and civilian gun ownership 160, 172–3; emerging norm 91; generation of knowledge 99–100; hypothetical norm 91–2; international awareness 10; and legal arms trafficking xix–xx, 198; main actors 100–4; mechanisms of norm diffusion 113–15; norm diffusion 104–13; norm emergence since 2001 115–16; obstacles to norm building 95–9; Program of Action 8, 58; Rwanda genocide 93–5; trade patterns 33; UN General Assembly 34; UN guidelines 44; UN resolutions 43 illicit brokers 229n1; see also arms brokers Illicit Traffic in Small Arms 69 import licenses 96 India 86, 131, 133

260

INDEX

influence 14, 31–2 information generation see knowledge generation information technology revolution: and transparency 143 inspection programs 143 institutionalization 207 Inter-American Convention against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (OAS Convention) 53, 153–4 International Action Network on Small Arms (IANSA) 20–1, 25, 49–50, 74, 125, 162, 204 An International Agenda on Small Arms and Light Weapons 100 International Alert 50, 76, 121, 201 International Atomic Energy Agency (IAEA) 143 International Campaign to Ban Landmines (ICBL) 4, 18, 20–1, 28, 201 International Committee of the Red Cross 18, 22 International Conference on Sustainable Disarmament for Sustainable Development 49 international humanitarian law (IHL) 178, 181 International Instrument to Enable States to Identify and Trace, in a Timely and Reliable Manner, Illicit Small Arms and Light Weapons 117, 134 internationalization: of norms 12 International Law Commission (ILC) 98 International Meeting on the Regulation of Civilian Ownership and Use of Small Arms 174 international negotiations: small arms xix international relations theories 196 International Small Arms Destruction Day 74, 85 International Study on Firearms Regulation 160 Internet 21 Interpol: transparency 155 intrastate conflicts 32, 38, 41 Iraqi invasion: of Kuwait 23, 31, 144, 146 Iraq Liberation Act (1998) 177 Iraq war xviii Israel 86, 93, 94, 116, 133 Italy 93, 149, 153

Japan 45, 56, 86, 112, 131, 133, 143, 149, 155, 166 Josselin, Charles 10, 235n9 Karp, Aaron 38, 39, 219n29 Kartha, Tara 38–9 Klare, Michael 19, 35, 38, 39, 40, 41, 43, 193–4, 204 knowledge generation path 34, 35–43, 99–100 Konaré, Alpha Oumar 22, 77 Krasner, Stephen 215n48 Krause, Keith 30, 58, 218n2, 231n30 landmines case 4–5, 25–6, 26, 28, 36, 200 Landmines Monitor 201 Latin America 55, 59, 89 Laurance, Edward 19, 38, 43, 46, 50–1, 75, 204, 239n25 legal and political framework: on small arms 51–8 legal arms trade: value of 198 Lesotho 70 Liberia 93 like-minded states: civilian gun ownership 175–6; coalition of 13, 46–9, 88–9; as norm makers 24; Oslo meetings 99–101; transparency 158; weapons marking 119–21 lines of supply 119–21 Lodgaard, Sverre 226n37, 226n44 Lord, Kristin M. 238n17 Lumpe, Lora 160, 184, 241n9, 242n18, 242n27, 246n32, 246n34 Maier, Harold 230n25 Mali: civilian gun ownership 171, 172; moratorium 22; transparency 149; UN mission 44–5; weapons destruction 76–8, 85, 86, 88, 89, 249n41 Mali Resolution (Resolution 49/75 G) 45, 77–8 MANPADS (man-portable air defense systems) 148 “Marches for Disarmament” 210 marking weapons see tracing (and marking) mass shootings 164 Mathiak, Lucy 246n34 Measures to Curb of the Illicit Transfer and Use of Conventional Arms 44 Meddings, David 211n6, 247n2, 247n3 media: and transparency 143

261

INDEX

Meidani, Rexhep 79 men: and gun violence 163 Mercosur member states 154 methodology 11–14 Middle East 56 MIIS (Monterey Institute of International Studies) 50 military intervention 30 Millennium Forum (2000) xvii–xviii Mills, Greg 40 Model Convention of the Registration of Arms Brokers and the Suppression of Unlicensed Arms Brokering 91–2 Model Regulations for the Control of Brokers of Firearms, their Parts and Components and Ammunition 115–16 models 193–4 Monterey Institute of International Studies (MIIS) 50 Moratorium on Importation, Exportation, and Manufacture of Light Weapons in West Africa 22, 77, 177 Mozambique 67, 69, 70, 72, 73, 170, 186 multilateral agreements xviii multilateral disarmament: reassessment of 33–4 multilateralism: importance of xix; and transparency 142 Nadelmann, Ethan 215n55 Nairobi Declaration: civilian gun ownership 171; general 55–6; illicit arms brokering 111; and soft law 199–200; supply of arms to non-state actors 186; tracing and marking 130; transparency 142, 156–7; weapons destruction 85 Nairobi Protocol 59, 61, 85, 89, 111, 156–7, 173–4, 200 Namibia 72 National Coalition for Gun Control 164 National Firearms Agreement 164 national reports: to UNDDA 156 National Rifle Association (NRA) 161, 175, 209–10 NATO 33, 79 negotiations: and norm building 207; small arms xix, 30 Netherlands 84, 162 NGOs (non-governmental organizations): action network 49; civilian gun ownership 161–2, 174; and compliance 201; illicit arms brokering 100–4, 113;

influence of 5–6; marking and tracing 121–3; as norm makers 24, 25–6, 40; PrepCom 50; Red Books 60–1; small arms debate 4, 24; and soft law 200; transparency 158; weapons destruction 75–6, 88; see also Biting the Bullet Project Nicaragua 37, 59, 67, 72 Nigeria 86, 155 NISAT (Norwegian Initiative on Small Arms Transfers ) 100 non-governmental organizations (NGOs) see NGOs (non-governmental organizations) non-state actors 88, 113–14, 244n1 norm building: circuitous avenues 205–8; coalition building patterns 204; generation of knowledge 99–100; influence of NGOs 204; Mali 76–8; phases 11–12; role of entrepreneurs 202–4; role of states 26; soft law 6–9; think tanks 75–6; UN General Assembly 43–6 norm building regarding small arms: 1990–5 34–43; 1995–2001 46–58; 2001–6 59–61 “norm cascades” 17 norm development: assessment of 202–3 norm diffusion: adjacency claims 19–20; component of hypotheses 14; conditions for 21–3; illicit brokering 104–13; mechanisms for 27–8, 88–90; role of actors 23–6; role of states 26; weapons destruction 79–87 norm entrepreneurs 17–19, 22–3, 24, 89, 158, 176, 202–4 norm evolution: stages of 16–20 norm international institutionalization: weapons destruction 79–87 “norm life cycle” 16–20 norm makers 23–6 norms: creation of 3–4; definition 16, 212n3 Norway 46, 86, 102, 103, 114, 115, 131, 149, 250n43 Norwegian Initiative on Small Arms Transfers (NISAT) 100 NRA (National Rifle Association) 161, 175, 209–10 nuclear non-proliferation regime 143 OAS (Organization of American States) see OAS Convention

262

INDEX

OAS Convention: civilian gun ownership 170; illicit brokering 108; Latin America and the Caribbean 59; regional document 53; supply of arms to nonstate actors 184; transparency 152, 156; weapons destruction 83, 89; weapons marking 127 OAU (Organization of African Unity) 70 Oberleitner, Gerd 30 Oil for Food scandal xviii–xix ONUCA 72 ONUMOZ 73 ONUSAL 72 Operation Mouflon 69 Operation Rachel 69 Optional Protocol to the Convention on the Rights of the Child 180 Organization for Security and Cooperation in Europe (OSCE) 4, 34 Organization of African Unity (OAU) 70 Organization of American States (OAS) 53 OSCE (Organization for Security and Cooperation in Europe) 4, 34 OSCE Document on Small Arms and Light Weapons (OSCE Document): brokering 110; civilian gun ownership 170; scope 54–5; and soft law 199; supply of arms to non-state actors 186; transparency 154–5, 158; weapons destruction 79, 84, 86, 89; weapons marking 130 OSCE member states: weapons destruction 71 OSCE Principles on the Control of Brokering in Small Arms and Light Weapons 116 Oslo meetings 99–100; (Oslo I) 48, 100 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction 4–5, 18, 21, 29 Pakistan 38–9 Panel of Governmental Experts on Small Arms (Panel Report 1997) see Panel Report (1997) Panel Report (1997): civilian gun ownership 165, 167–70; illicit arms brokering 105–8; role of 46, 52; supply of arms to non-state actors 184; transparency 151, 152; use in study 18, 82; weapons destruction 82, 83; weapons marking 126–7 Paris Process framework 124–5

Partnership for Peace (PfP) 79 “Peacebuilding Commission” 196–7 peace-keeping operations 37, 67, 72–5, 88 Peartree, Edward 75, 231n29, 232n44, 232n47, 246n42 Peleman, Johan 100, 230n8, 230n13–16 “perception of crisis” see shock events persuasion 27 PfP (Partnership for Peace) 79 policy network: formation of 49–51 political framework: on small arms 51–8 “Political implications of illegal arms exports from the United States” 38 Port Arthur shooting 164 post-Cold War model 41–2 post-conflict reconstruction 37, 39 post-conflict situations 66, 67 praise 18, 28 PrepCom (Preparatory Committee) 50 preventive diplomacy xv Price, Richard 218n107 private gun possession see civilian gun ownership problems: global xviii Program of Action: civilian gun ownership 160, 172–3; illicit arms brokering 8, 103–7, 112–13; implementation 60; Middle East and Asia 61; norms 197–8; political document 57; preamble 194, 195; sale of weapons to non-state actors 22; scope of 58; and soft law 199; South America 59; transparency 151, 155–6, 156; weapons destruction 76, 85–7; weapons marking 131–3 Program of Action Review Conference 157, 158 pro-gun regulation groups 161, 175 proliferation 37 proliferation/arms-race model 193 “Proliferation of small arms and minor weapons” 39 prominence: norm diffusion 22 Protocol Against the Illicit Manufacturing and Trafficking in Firearms see Firearms Protocol publications 38–42 public health 30 rational choice theorists 15 realist theories 196 record-keeping see tracing RECSA (Regional Center on Small Arms and Light Weapons) 200

263

INDEX

Red Books 60–1, 201, 202 Red Cross 18, 22 Reed, Laura 40 Regional Center on Small Arms and Light Weapons (RECSA) 200 Report on Firearms Manufacturing Community Recommendations Regarding Firearms Marking Issues 123–4 resistance groups 181 Resolution 43/36 H 43 Resolution 43/36 L 43 Resolution 43/75 I 43 Resolution 46/36 H 44 Resolution 46/36 L 146 Resolution 48/75 F 77 Resolution 48/75 H 44 Resolution 49/75 G (Mali Resolution) 45, 77–8 Resolution 49/75 M 44, 45, 77 Resolution 50/70 B 45, 52 Resolution 50/70 H 44, 45 Resolution 52/38 G 74 Resolution 54/54 69 Resolution 54/54 V 105 Resolution 55/33 Q 73–4 Resolution 56/24 V 59 Resolution 58/70 B 45 Resolution 59/86 109 Resolution 1013 94 Resolution 1373 181 Resolution A/50/70 78 Resolution A/RES/54/263 180 “resonation” 20 restrictions: and transparency 142 Revolutionary United Front (RUF) 102 Reyes, Camilo 172–3, 187 ridicule 18, 28 RUF (Revolutionary United Front) 102 Running Guns 100, 184 Russia 86, 148, 149, 155 Russian Federation 125, 149, 155 Rwanda 10, 14, 23, 39, 93–5, 102, 180, 205 SADC (South African Development Community) 55 SADC Protocol: civilian gun ownership 173; goal of 56; illicit arms brokering 105–7, 115; regional document 55; supply of arms to non-state actors 186; transparency 156; weapons destruction 85, 87; weapons marking 133

Saferworld 50, 76, 88, 121, 201 Salim, Salim Ahmed 124–5 SALSA (Small Arms and Light Weapons Administration) 156 Sandanistas 75 SATCRA (Small Arms Transparency and Control Regime in Africa) 159 Saudi Arabia 149 Schutz, Frédéric 230n7 security agenda 19 security policy making 5 security relations 195 self-defense: right to 196, 197 self-determination: right to 195, 197–8 September 11th attacks 181 Shelton, Dinah 6, 218n10, 248n19, 248n30, 248n34 shipping: definition 95 shock events 23, 205 Sierra Leone 93, 102, 186, 205 Sikkink, Kathryn 17, 18, 21 Singh, Jasjit 41, 150 small arms: definition 211n1 small-arms debate: implications of 195–7 small-arms destruction see weapons destruction small-arms negotiations xix, 30 small-arms proliferation model 193–4 Small Arms Survey 24–5, 141, 156, 202 Small Arms Survey 2005: Transparency Barometer 139; Weapons at War 212n6 small-arms trade: increase 41–2 Small Arms Transparency and Control Regime in Africa (SATCRA) 159 Smith, Christopher 39, 40 Smyth, Frank 39 Snidal, Duncan 213n18 socialization 18, 27, 28 soft law: norm building 6–9, 69, 199–201 Soft Law Project 6 Solomon Islands 156 Somalia 37, 67 Sou da Paz 174 South Africa 69–70, 113, 149, 162, 170, 186 South African Development Community (SADC) 55 South Asia 56–7 South Korea 149 sovereignty xix–xx, 195, 197–8 Soviet republics, former 66–7, 83; see also Russia states: coalition of 46–9; influence of 18; like-minded 24; and norm building 26

264

INDEX

objectives 150; UN’s role 144–7; Wassenaar Arrangement 147–8 transport agents 95 Turkey 75

state sovereignty xix–xx Statute of Disarmament 209, 242n23 stockpiling: of surplus weapons 68 studies: firearms regulation 165–7; land mines 26; small arms problems 38–42; surplus weapons management 75 suicide rates 163, 164 Supplement to an Agenda for Peace 45, 165, 208 surplus weapons: availability 32–3; destruction of see weapons destruction; norm building 75–6 Sweden 84, 149, 153, 158 Switzerland 112, 119–20, 133, 149, 162, 172, 179, 250n43 Tajikistan 156 TANs (transnational advocacy networks) 21, 24, 25, 31 Tanzania 70 Tasmania shooting 164 TCI (Transfers Control Initiative) 157 terrorism xviii, 181 Thakur, Ramesh 211n4 think tanks: civilian gun ownership 161–2; weapons destruction 75–6 three-tiered method: of global normdevelopment analysis 11–14 threshold point 17, 18, 27 Timbuktu Flame of Peace 77 Tools for Arms Project 73 traceability: possessions and transfers 48 tracing (and marking): definition 234n1; emergence since 2001 134–5; Firearms Protocol 172; mechanisms of norm diffusion 133–4; norm building actors 118–26; norm diffusion process 126–33; overview 117–18 Transfers Control Initiative (TCI) 157 transnational action: formation of 49–51 transnational advocacy networks (TANs) 21, 24, 25, 31 Transparency Barometer: Small Arms Survey 2005 139 Transparency in Armaments 43–4, 146 transparency in small-arms transfers: early policy 42; EU Code of Conduct 54; general 139–42; initial norm development 142–3; mechanics of diffusion 157–9; norm xx; normative environment 23; norm development 148–51; norm diffusion 151–7; norm emergence since 2001 159; norm

UK (United Kingdom) 71, 74, 93, 94, 125, 164 Ukraine 75, 94 UN (United Nations): arms transfers 98; civilian gun ownership 161, 165–7; Conference on Disarmament 139; First Committee 30; small arms debate 4; transparency 159; validity of xviii–xix; weapons destruction 71–5, 82, 88, 89 UNAVEM I and II 72 UN Charter 180; Article 51 37 UN Commission of Inquiry 102 UN Commission on Crime Prevention and Criminal Justice 164–7 UN Commodity Trade Statistics Database (UN Com trade) 149 UN Conference on the Illicit Trade in Small Arms and Light Weapons in All its Aspects (UN 2001) 8, 12, 22, 35, 52, 76, 108, 110 UN Conventional Arms Register 20, 23, 31, 43 UNDDA (UN Department for Disarmament Affairs) 78, 156, 196 UN Disarmament Commission 43 UNDP Trust Fund 74, 78, 156, 196, 201 UNECOSOC (UN Economic and Social Council) 50, 165; report 162 UN First Committee for Disarmament and International Security xix, 196 UN General Assembly xvii–xviii, 34, 43–6, 73–4; resolutions 12 UN Guidelines (Guidelines for International Arms Transfers) 44, 98, 165 UNIDIR (UN Institute for Disarmament Research) 37, 71–5, 88 United Kingdom see UK (United Kingdom) United Nations see UN (United Nations) United States of America (USA): child soldiers 180–1; civilian gun ownership 22, 27, 161, 163, 172, 175; funding 79; landmine ban 18; moral values xix; norm development 58; NRA (National Rifle Association) 209–10; small-arms import and export 149–50; supply of arms to non-state actors 186–7; surplus weapons 86; and transparency 143; war on terror xviii

265

INDEX

University of Bradford 201, 235n15 UNOMOZ 72 UN Panel of Governmental Experts on Small Arms 35, 43, 46 UN peace-keeping operations 67, 72 UN Register of Conventional Arms 75, 144, 146–7, 158 UN resolutions 8, 43–6, 52, 59, 69, 74, 77–8, 94, 105, 109, 146, 180, 181 UN role: conventional arms transfers 144–6 UN Security Council 93 UN Study on Ways and Means of Promoting Transparency in International Transfers of Conventional Arms 144–6, 152, 158 UNTAG 72 UN Trust Fund for the Consolidation of Peace through Practical Disarmament Measures (UN Trust Fund) 74, 89 USA see United States of America (USA) US State Department study 26 violence: and availability of small arms 3; in cities 66; and civilian gun ownership 163–4; cultures of 49; proliferation of 41–2; reduction of 30; transnational xviii Viva Rio 161, 162, 174, 209–10 Warsaw Pact 68 Wassenaar Arrangement 31, 116, 147–8, 149 Watson, Charlotte 223n108, 224n2, 248n27 weapons availability 3, 35–6

weapons collection 49, 67–8 weapons destruction: acceptability 65; development of the norm 66–8; funding instruments 74–5; Mali 76–8; mechanism of norm diffusion 88–90; methodology 65–6; norm diffusion 79–87; state practice 69–71; surplus 9–10, 49, 75–6; think tanks 75–6; threshold point 65–6; UN role 71–5 weapons of mass destruction 24, 31, 32, 37, 45 Wery, Michel 230n7, 235n12 Westphalian system of states xviii We the Peoples Millennium Forum Declaration and Agenda for Action xvii–xviii WFSA (World Forum on the Future of Sport Shooting Activities) 123–4 Williams, Jody 183, 202 women: and gun violence 164; and international policy-making 181 Wood, Brian 100, 102, 230n8, 230n13–16 World Forum on the Future of Sport Shooting Activities (WFSA) 123–4 World Health Organization 196 world time context factors 20, 23 World Trade Center attacks 181 World Wide Web 21 Worst Forms of Child Labor Convention 180 Yugoslavia, former 83 Zaire (now DRC) 94 Zawels, Estanislao A. 226n36

266

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Web Security & Commerce

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Small Arms & Security: New Emerging International Norms (Contemporary Security Studies)

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Nuclear Proliferation and International Security (Routledge Global Security Studies)

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Setting the 21st Century Security Agenda: Proceedings of the 5th International Security Forum (Studies in Contemporary History and Security Policy)

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Web Security & Commerce

Security Studies: An Introduction

Security Studies: An Introduction

Security Studies: An Introduction

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