A World Drowning in Guns
A World Drowning in Guns
Harold Hongju Koh 0
0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
Recommended Citation Harold Hongju Koh, A World Drowning in Guns, 71 Fordham L. Rev. 2333 (2003). Available at: http://ir.lawnet.fordham.edu/flr/vol71/iss6/1
Harold Hongju Koh*
I come to New York to talk about a familiar subject: gun control.
But let me warn you: this may be a different kind of gun control
lecture than you have heard before. It will not be about gun control in
the streets of Manhattan or Columbine, or the Brady Bill, or gun
registration, or even the Second Amendment, at least not until the
lecture's end. What I want to talk about is gun control in such cities as
Freetown, Sierra Leone; Pristina, Kosovo; Medellin, Colombia;
* Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law
School, Assistant Secretary of State for Democracy, Human Rights and Labor,
19982001. This article represents a lightly edited and footnoted version of the Robert L.
Levine Distinguished Lecture, delivered on April 2, 2002 at the Fordham University
School of Law in New York City. It is part of a forthcoming book tentatively entitled
"Why Nations Obey: A Theory of Compliance with International Law." This lecture
grows out of thoughts inspired by a Social Science Research Council Workshop on
Law and International Relations sponsored by the Program on Global Security and
Cooperation that I attended in February 2002 in Washington, D.C. I am grateful to
John Tirman, Tom Biersteker, Ben Rawlence, and the other participants in that
workshop for their illuminating papers and presentations on the relationship between
international law and small arms proliferation, and to Akhil Amar and Ian Ayres for
helpful comments. I am also grateful to Jessica Sebeok and Steve Vladeck of Yale
Law School for splendid research assistance, and to my many friends at Fordham for
their gracious hospitality during my visit, especially Dean Bill Treanor, Professor
Chantal Thomas, and the leaders of the outstanding Crowley Program in
International Human Rights, Professors Martin Flaherty, Tracy Higgins, and
I dedicate this lecture to my beloved parents-in-law, Sarah J. Fisher and
William E. Fisher, Jr. Bill Fisher graduated with the Fordham Law School Golden
Reunion Class of 1952. He earned his L.L.B. at Fordham through long and arduous
years of night classes, which he took after commuting daily from Long Island to his
job in New York City. While Bill pursued a successful career in international
business, he and his remarkable wife Sally together raised three gifted children: Jane,
Bill III, and my wife Mary-Christy Fisher, who now works as a lawyer at New Haven
Legal Assistance Association. I still remember how proud Bill and Sally were, in May
1986, when along with a group of Fordham Law graduates, Bill was admitted to the
Bar of the U.S. Supreme Court on motion of Judge William Hughes Mulligan, the
former Dean of Fordham Law School. Fragile health prevented Bill Fisher from
attending both his Fiftieth Reunion and this lecture at his alma mater, but there
should be no doubt that his moral example and commitment to the rule of law
FORDHAM LA W REVIEW
Kabul, Afghanistan; Port-au-Prince, Haiti; Mogadishu, Somalia-all
places that consumed my attention during my tenure as Assistant
Secretary of State for Democracy, Human Rights and Labor.
My government travels took me to some fifty-five countries in two
and a half years. During that time, I learned that in every continent,
in every city around this planet, there are guns, more guns than we
could ever use. There are more guns than any sane civilization would
ever need. At the dawn of the twenty-first century, we live in a world
drowning in guns. Why is this so and what should we do about it?
Let me divide my answer into three parts: First, how big is the
world's gun problem and how did it come about? Second, what can
and should we-as responsible lawyers, scholars, and human rights
activists-do about this huge and growing global problem? Third,
what kind of global gun control regime could we and should we try to
I. THE PROBLEM
Let me start by describing the problem. Today there are an
estimated 639 million documented small arms in the world. That is
more than half-a-billion small arms: more than one for every twelve
men, women, and children on the face of the earth. Significantly, all
sources concede that this number undercounts the actual number by
tens of millions. It does not include, for example, the millions of
undocumented, privately held guns in such major countries as China,
India, Pakistan, or France.'
Let me focus on a category known as "small arms and light
weapons," a term generally understood to encompass weapons that
possess three characteristics. First, an ordinary person can carry them.
They are transportable by individual human beings, and thus are
socalled "man- or woman-portable." Second, they are capable of
delivering lethal force. Third, they are primarily designed for military
use, and so exclude such recreational weapons as hunting rifles,
collectors' items, personal memorabilia, and the like.
While no universally accepted legal terminology exists, considerable
agreement has begun to emerge that the term "small arms" includes,
at a minimum, handguns, revolvers, pistols, automatic rifles, carbines,
shotguns, and machine guns. "Light weapons," which are usually
heavier, larger, and designed to be hand-carried by teams of people,
embrace grenade launchers, light mortars, shoulder-fired missiles,
1. Small Arms Survey 2002: Counting the Human Cost [hereinafter SAS 2002].
Much of the information in this part is drawn from the successive editions of this
impressive and sobering survey, a project of the Graduate Institute of International
Studies in Geneva. Updated information is available at www.smallarmssurvey.org.
rocket launchers, artillery guns, antiaircraft weapons, anti-tank guns,
and related ammunition.2
What characteristics distinguish this class of small arms and light
weapons? Let me enumerate six. First and most obvious, they are
portable, easily concealed and easily used. Unlike complex weapon
systems, these systems require little or no maintenance, logistics,
support, or training. Children can and do learn how to operate these
weapons with sickening ease. As any parent knows, even a
five-yearold child knows how to point a gun and pull the trigger. If you saw
Ridley Scott's chilling movie, Black Hawk Down, based on Mark
Bowden's account of the 1993 battle of Mogadishu, Somalia, you also
know that throughout the developing world, small arms are regularly
carried by teenagers and children. During my travels as Assistant
Secretary, I cannot tell you how many times I saw teenaged and
preteen children carrying rifles and assault weapons, pointing them at
each other, or at strangers like me, with a casualness and playfulness
that made my blood run cold.
In many parts of the world, the Lord of the Flies carries small arms.
Children use small arms to kill other children. Indeed, for all the
worldwide effort that has been expended to reduce the flagrant use of
child soldiers in armed conflict,4 the availability of small arms
contributes as much to the global proliferation of child soldiers as any
governmental policy.' There are more than 300,000 child soldiers in
the world, and many of them carry small arms.6 Black Hawk Down
graphically depicts how in one day in Mogadishu, eighteen American
soldiers were killed. But what you probably did not know was that
those soldiers killed nearly 500 and wounded 1,000 more, a great
many of them children: an all too typical story in the daily saga of
Second, small arms are not just portable, they are cheap: cheap to
make and cheap to buy. The most famous example is the AK-47, the
famous Kalashnikov assault rifle, of which some 70 to 100 million are
believed to exist worldwide.' In southern Africa, AK-47s can be
bought for as little as $15, the same price as a bag of maize.' In some
countries, you can buy an AK-47 for $10, or trade one for a goat or a
chicken." You can rent an AK-47 by the hour to rob a store or to
carry out an assassination.
In many parts of the world, AK-47s are considered romantic. The
AK-47 is the "rifle of choice" for guerrilla movements. It has been
the symbol of guerrilla resistance for the African National Congress in
South Africa, for the Irish Republican Army, and for the Kosovo
Liberation Army. An AK-47 even appears on the Mozambique
national flag." Most timely, the AK-47 has come to be associated
with the Mujahedeen of Afghanistan. Afghanistan currently ranks as
the world's leading center of unaccounted small weapons, with at least
10 million small arms believed to be there, 2 having been recently used
by AI-Qaeda and the Taliban against U.S. troops in battles like
Operation Anaconda. The Washington Post recently reported that,
on the eve of the U.S. attack on [raq, anywhere from one to seven
million Iraqi civilians were armed with AK-47s in anticipation of the
An AK-47 possesses only nine moving parts, and thus is relatively
simple to handle and reproduce. Because the original design was not
patented in Russia, copies are now being manufactured in some
nineteen countries, including China, the former Yugoslavia, Egypt,
and Iraq."5 Although the "nuclear club" remains thankfully small, a
growing number of countries have achieved self-sufficiency in the
indigenous production and manufacture of small arms and related
ammunition, and many of those countries are even apparently starting
to export small arms.' 6
Third, small arms and light weapons are shockingly durable.
Because they have minimal maintenance requirements, small weapons
can remain operational for up to twenty years. By contrast,
antipersonnel land mines can be used only once. Once triggered, they
destroy themselves and become "self-neutralizing." Yet usable small
arms can still be found that date back more than half-a-century to the
Second World War.
For that reason alone, small arms users are far less likely to destroy
their weapons than they are simply to trade them in for better, more
modern weapons. I saw this with my own eyes while visiting a
socalled militia "disarmament center" on the border of West and East
Timor in late 1999."v I was told by the Indonesian military that the
Indonesian militias were disarming, and turning in their guns. We
went into a small shed, which contained a huge pile of guns of every
conceivable variety-crude zip guns, guns with homemade barrels,
guns with homemade stocks, you name it. But on closer inspection, I
realized that the pile included no modern guns. It dawned on me that
what I was standing in was not a disarmament center, but rather a
weapons exchange. Militiamen were bringing in their homemade zip
guns and trading them for AK-47s, earning food coupons and
disarmament credit as a premium.
Fourth, small arms are tradeable. Guns that are sold legally often
wind up in illegal hands. Their fungibility, their portability, their small
size, and their widespread availability makes them an alternative
black-market global currency for transnational terrorists. Small arms
can be bartered for food, livestock, smuggled money, even diamonds.
Large shipments can pass undetected across national borders and
travel huge distances. In 1997, for example, American agents
intercepted an arms shipment of M-2 automatic rifles that had been
left in Vietnam by American forces; over a period of twenty years, the
agents determined, those rifles had traveled from Ho Chi Minh City
to Singapore; to Bremerhaven, Germany; to Long Beach, California;
and then to Mexico, where they were finally intercepted."8
Fifth, because of these attributes-portability, price, durability, and
availability-small arms dramatically fuel and inflame armed conflicts.
If the Cold War was the era of nuclear weapons, the post-Cold War
years stand as the era of small arms and light weapons. 9 Just as
Rwanda was a "low-tech genocide," committed largely by machete,
small arms constitute today's real weapon of mass destruction. One
nongovernmental organization ("NGO") reports that Africa suffered
six million war-related fatalities over the last fifty years, most of these
due to small arms and light weapons."' The U.S. Committee on
Refugees reports that we are currently witnessing the largest number
of refugees and internally displaced persons since World War
IIfourteen million refugees and nineteen million internally
displacedand most of those displaced persons are not fleeing from nuclear
weapons but rather men with guns."
The Deputy Secretary-General of the UN, Louise Fr6chette,
reports that small arms were the only weapons used in forty-six of the
forty-nine wars conducted since 1990.22 Three million
civiliansalmost the equivalent of the population of Ireland-have been killed
by small arms since 1990.23 Not just interstate armed conflicts, but
also acts of terrorism, have been conducted with small arms. The
people carrying these weapons include the suicide bombers in Haifa
and the terrorists of Al-Qaeda. According to recent press accounts, a
former Soviet military officer based in the United Arab Emirates runs
a weapons trafficking network that supplies the Taliban, Al-Qaeda,
Abu Sayyaf in the Philippines, and rebel forces in Africa.24
One recent study has concluded that small arms are implicated in
1,300 deaths a day, a toll that approaches the magnitude of the global
AIDS crisis.25 Yet the costs of these weapons runs far deeper than just
shipments contained what were "obviously weapons of war." Id.
19. Patrick Brogan reports that between fifteen and twenty million deaths have
occurred in the eighty-five wars since 1945. See Patrick Brogan, World Conflicts 644
20. The Institute for International Studies (ISS) of South Africa reports that
Africa alone has suffered 5,994,000 war-related fatalities in the last fifty years due
mostly to small arms and light weapons. See Int'l Info. Programs, Can Small Arms and
Light Weapons Be Controlled? (June 2, 2001), available at http://usinfo.
21. For a comprehensive treatment of the issues and causes affecting displaced
persons, see U.S. Committee for Refugees, World Refugee Survey (2002), or visit
Worldwide Refugee Information, at http://www.refugees.org/world/worldmain.htm.
22. Press Release, UN, Deputy Secretary-General Calls for 'Strongest Possible'
Action Programme rom Small Arms Conference (Sept. 7, 2001), available at
23. Human Rights Watch, Press Release, Major New Campaign Launched
Against Small Arms Proliferation (May 11, 1999), available at http://www.hrw.org
24. Douglas Farah, Arrest Aids Pursuitof Weapons Network, Wash. Post, Feb. 26,
2002, at Al.
25. SAS 200 1,supra note 8.
the mortality, injury, and psychological trauma of people who are
shot. In assessing the social costs imposed by these weapons, one
must also take account the public health costs in terms of lost
productivity; the crime costs in terms of increases in insurance and the
cost of hiring private security firms; the humanitarian costs in terms of
displaced persons and injuries to relief personnel; the militarization of
refugee camps; 26 and the development costs in terms of economic,
social, and educational underdevelopment. At a geopolitical level, the
costs are felt in terms of threats to regional security, increases in
peacekeeping costs, threats to peacekeepers and humanitarian relief
workers, and increased security costs to counteract the use of these
Sixth, and most striking, until recently, this flood of guns has gone
almost entirely unregulated. As you know, most arms control efforts
since World War II have been devoted to restraining nuclear weapons
and weapons of mass destruction, chemical and biological weapons,
and those efforts have been salutary. But, until the last decade, there
has been no systematic focus on small arms. The task of regulating
small arms has been complicated by five main factors. First, a lack of
knowledge, which follows from the fact that less than half of the
exporting countries publish, or even maintain, data on their small
arms exports. Second, the nature of the weapons themselves makes
them difficult to track. Third, the large number of producing
companies and countries and the black and gray markets for such
goods make difficult both supply-side controls and distinguishing licit
from illicit trade. Fourth, nearly all such weapons have some legal
uses for police work, military purposes, and the like. Fifth and finally,
human rights and civil liberties arguments are often made in favor of
individuals' rights to possess such weapons under domestic law, as for
example, under the Second Amendment of our own Constitution. 28
26. As I saw in Kosovo and West Timor, in too many refugee camps there are
people with guns. The mere presence of guns turns refugee camps from safe havens
into oppressive centers for persecution, as well as for impressing and recruiting child
soldiers. See, e.g., Human Rights Watch, Liberian Refugees in Guinea: Refoulement,
Militarization of Camps and Other Protection Concerns (Nov. 2002), available at
www.hrw.org/reports/2002/guinea; see also The Lawyers Committee for Human
Rights, Refugees, Rebels and the Quest for Justice, available at
http://www.lchr.org/refugees/reports/ref _rebelsintro.pdf (last visited Apr. 15, 2003).
27. Robert Muggah & Peter Batchelor, "Development Held Hostage": Assessing
the Effects of Small Arms on Human Development, A Preliminary Study of the
SocioEconomic Impacts and Development Linkages of Small Arms Proliferation,
Availability and Use (United Nations Development Programme, Apr. 2002),
28. The Second Amendment states: "A well regulated Militia, being necessary to
the security of a free State, the right of the people to keep and bear Arms, shall not be
infringed." U.S. Const. amend. I. See generally Natalie J. Goldring, The NRA Goes
Global, 55 Bull. of Atom. Sci. (Jan./Feb. 1999), available at
http://www.bullatomsci.org/issues/1999/Jf99/jf99goldring.html (discussing the NRA's
and other pro-gun organizations' attempts to prevent international controls on illicit
Given this complex mix of problems, it would be easy simply to
throw up one's hands and say that this is one of the world's problems
we cannot solve. Indeed, I must confess that that was my own
reaction when I first encountered this issue as Assistant Secretary of
State for Human Rights. But during my time in office, two things
changed my mind.
First, when I visited places like Colombia, Kosovo, Sierra Leone,
and East Timor, I saw that the very promiscuous presence of guns
chokes civil society. Guns kill civil society. The pervasive presence
of guns perpetuates a culture of societal violence. People simply do
not want to invest money in places where everyone carries guns-for
proof, just look at Afghanistan, Colombia, and Somalia. Why should
people trust ballots when somebody else will trust the rule of the gun?
Or take Afghanistan. At the moment, Hamid Karzai is technically
President of that country. But in fact, he functions more like First
Selectman of Kabul than as a head of the state. His vice-president
was assassinated, and he barely avoided assassination himself.29
British and American army personnel are said to be training the
vanguard of a new national army. But meanwhile, in northern
Afghanistan, the Northern Alliance has committed looting, murder,
and beatings against Pashtun civilians.3 General Rashid Dostum, the
Deputy Defense Minister, has been blamed with expelling thousands
of Pashtuns from their homes, and is widely believed by UN officials
to be receiving money and guns from Iran, which happens to be part
of President Bush's "Axis of Evil.' So if guns continue to rule in
Afghanistan, as they have done for half a century, what hope can
there be there for democracy and civil society?
small arms trade, in part by advancing arguments that such controls would
circumscribe domestic Second Amendment rights as well as other fundamental rights
and national sovereignty). For a sampling of organizations that equate the right to
possess weapons with basic human and civil rights, see, for example, the website of
the Second Amendment Sisters, at http://www.sas-aim.org/stand/un.html, a women's
pro-gun organization founded in reaction to the Million Mom March, with the motto,
"Sell' Defense is a basic human right." For another example, see the website of
Seniors United Supporting the Second Amendment, a self-styled "philanthropic
human rights organization" of' U.S. citizens over the age of 50, dedicated "to
preserving the Second Amendment and the rights it enshrines," at
29. Carlotta Gall, Threats and Responses: Karzai's Progress, N.Y. Times, Dec. 2
, at Al.
30. Press Release, Human Rights Watch, Anti-Pashtun Violence Widespread In
Afghanistan, Human Rights News, Mar. 3, 2002, available at http://www.hrw.
31. Dexter Filkins, The Anxiety of Postwar Afghans, N.Y. Times, Mar. 31, 2002, §
4, at 5; see also Carlotta Gall, Afghan Leader Swears in 5 Deputies with an Eye to
Balance, N.Y. Times, June 28, 2002, at A6 (explaining Hamid Karzai's attempts to
negotiate a political alliance with powerful regional-ethnic warlords and Rashid
Dostum's ongoing resistance to a centralized Afghan state). For an in-depth and
critical account of competing hegemonic influences in postwar Afghanistan, see
Michael Ignatieff, Nation-BuildingLite, N.Y. Times, July 28, 2002, § 6, at 26.
The second event that deeply affected me was meeting with Oscar
Arias Sanchez, the former President of Costa Rica, the winner of the
Nobel Peace Prize. During what I expected would be a friendly
meeting, he turned to me, provocatively, and asked, "If you are from
the U.S. Government and you care about human rights, why don't you
stop the flow of guns into Latin America? 3 2 I felt a combination of
concern and skepticism, but an unnerving suspicion that he might be
right. I answered, "Well, it is difficult," and gave some of the reasons
that I have just given to you. He said to me angrily, "Don't we have
enough guns? If the U.S. really cares about human rights, why don't
you do something about the guns?"
Since that day, his words have weighed upon me. I had to admit
that he was right. If we really care about human rights, we have to do
something about the guns. But what, precisely, should we do? How
do we develop and establish a global system of effective controls on
small arms and light weapons?
II. THE APPROACH
With this background, let me turn away from human rights practice
for a moment to a broader question of human rights theory. When I
was in the government, what most bothered me was the gap between
ideas and influence. As a professor I suspected, and as an official I
confirmed, a sad paradox: usually, in the world of policymaking, those
with ideas have no influence and those with influence have no ideas.
Even decisionmakers who seek an innovative solution to a problem
often have no time to consult the academic literature, and when they
do, they find the literature so abstract or impenetrable that it cannot
be applied to the problem at hand. But if that is generally true, how
do we bridge the gap in this case and move from ideas to influence?
In my academic work before I entered the government, I tried to
explain why nations do and do not obey international law. The key to
understanding whether nations will obey international law, I have
argued, is transnationallegal process: the process by which public and
private actors-namely, nation-states, corporations, international
organizations, nongovernmental organizations-interact in a variety
of fora to make, interpret, enforce, and ultimately internalize, rules of
international law.33 The key elements of this approach are
32. Indeed, this is the core objective of the Oscar Arias Foundation. The three
primary programs of the Arias Foundation are: The Center for Human Progress, The
Center for Organized Participation, and The Center for Peace and Reconciliation
(including, inter alia, the First Central American Forum on the Proliferation of Light
33. For elaboration of this argument, see Harold Hongju Koh, The 1998 Frankel
Lecture: Bringing International Law Home, 35 Hous. L. Rev. 623 (1998); Harold
Hongju Koh, The "Haiti Paradigm" in United States Human Rights Policy, 103 Yale
L.J. 2391-92 (1994); Harold Hongju Koh, How Is International Human Rights Law
"interaction-interpretation-internalization." Those seeking to create
and embed certain human rights principles into international and
domestic law should promote transnational interactions,that generate
legal interpretations,that can in turn be internalizedinto the domestic
law of even skeptical nation-states.
Applying this approach to developing a global regulatory solution
for small arms and light weapons, we can break down the problem
into five stages:
" First, knowledge-understanding the nature of the global
* Second, networks-the creation of NGO and civil society
networks to start to build a regime to address the problem.34
* Third, developing norms and recruiting committed
individuals who are willing to promote those norms and to
speak out against the practice. Such individuals would include
credible people from outside the government, such as Oscar
Arias himself, whom I call "transnational norm entrepreneurs,"
and sympathetic people from within governments, whom I call
"governmental norm sponsors."35
Fourth, "horizontal process," a short-hand term for legal
process that occurs at an intergovernmental level. This
horizontal process can transpire either at a formal
intergovernmental level or at informal state-to-state gatherings,
anywhere that the governments of say, the United States, the
United Kingdom, France, Russia, and China, for example,
might all gather to talk about arms control or the development
of international law. The goal, as I have specified elsewhere, is
creating a law-declaring forum that can operate at a global level
to declare an international norm against the illicit sale, transfer,
and use of small arms and light weapons, as well as building a
broader interpretive community that can construe that norm in
a variety of settings."
The fifth and final step I call "vertical process," the process
whereby rules negotiated among governments at a horizontal,
Enforced?, 74 Ind. L.J. 1397 (1999); Harold Hongju Koh, Transnational Legal
Process, 75 Neb. L. Rev. 181 (1996); Harold Hongju Koh, TransnationalPublic Law
Litigation, 100 Yale L.J. 2347, 2358-75 (1991); Harold Hongju Koh, Why Do Nations
Obey International Law?, 106 Yale L.J. 2599 (1997).
34. For probing discussions of how such transnational networks are formed and
influence human rights policy, see, for example, Margaret Keck & Kathryn Sikkink,
Activists Beyond Borders: Advocacy Networks in International Politics (1998);
Annelise Riles, The Network Inside Out (2000) (discussing the role of Fijian
participants as part of the global network that planned and executed the Beijing
Women's conference); see also Transnational Social Movements and Global Politics:
Solidarity Beyond the State (Jackie Smith et al., eds., 1997).
35. Koh, Bringing International Law Home, supra note 33, at 647-48.
36. Id. at 649-51.
intergovernmental level and interpreted through the interaction
of transnational actors in these law-declaring fora are brought
down vertically into the domestic law of each participating
country- "brought home" if you will-and internalized into the
domestic statutes, executive practice, and judicial systems of
those participating nations.
That, in a nutshell, is how, in my view, international law becomes
law that people actually obey: by moving from knowledge, to
networks, to norms, to horizontal process, and to vertical process. But
if these are the steps toward global regime-building, how far have we
actually proceeded up this ladder with regard to the global regulation
of small arms and light weapons?
To start with the question of knowledge: why did we know so little
about the small arms problem until the last ten years?37 The short
answer is that during the Cold War, a huge global arms trade existed,
but most of it involved conventional weapons of a very large size."'
Both the United States and the Soviet Union made large-scale
conventional arms transfers to "client states." At the same time, a
very large small arms trade was also occurring, but like a hill hidden
under the floodwaters, it was dwarfed and overshadowed by this huge
trade in larger conventional arms. After the Cold War, both the
supply and demand side of the large-arms trade diminished: one of the
two major arms suppliers, the Soviet Union, effectively went out of
business, and its political rationale for providing larger weapons to
countries in Central America and Africa disappeared as local wars
ended, leaving in their wake huge masses of durable weapons. At the
same time, some of the major producers of small arms, like Russia and
other countries of the former Soviet Union, continued to manufacture
AK-47s at their old levels, creating a dramatic oversupply. So as the
floodwaters started to diminish, and conventional arms sales started to
drop, suddenly the extent of the ongoing small arms trade became
Most impressive, in the early 1990s, a massive oversupply emerged.
Existing guns were not being destroyed, even while new and more
sophisticated guns were being developed. The vicious fighting that
took place during the 1990s in Rwanda, in Bosnia, and Kosovo was in
many ways supported by these grotesque gun oversupplies.
Only two global regimes exist for dealing with these problems. The
first is the UN Register of Conventional Arms,39 which does not
record the number of small arms. The second is the so-called
Wassenaar Arrangement, a club of 33 exporting states that agrees to
consult on voluntary transfers of arms, but which functions opaquely,
with no formal clout and little enforcement power4."
But in 1993-only ten years ago-academic articles started to
appear about the small arms trade, and academic conferences began
to spotlight the topic.4" The academics pushed to get the UN
interested, particularly the UN Institute for Disarmament Research.4 2
Research NGOs in several supplying countries also took up this
issue-including the Arms Division of Human Rights Watch, the
Bonn International Center for Conversion, British American Security
Information Council ("BASIC"), International Alert, and the
Institute for Security Studies in South Africa. As often happens, once
research NGOs get involved, activist NGOs begin to get involved as
well. The international gun control lobby soon linked up with the
domestic gun control lobbies in leading countries.43
And then, as with the Landmines treaty, transnational norm
entrepreneurs entered the picture and started to create action
networks. One of the leaders of this movement was my interlocutor,
Oscar Arias, who gathered eighteen Nobel Prize Winners to create an
International Code of Conduct with regard to arms transfers.4
Finally, the transnational activists developed their own network, the
39. The United States was among the original sponsors of the UN resolution
establishing the UN Register of Conventional Arms, and annually submits relevant
information to the Register, along with more than 90 other countries. A number of
countries have proposed complementary regional registers that would explicitly
enumerate small arms, for example in Africa, where small arms are the primary
weapons of war. See UN Register of Conventional Weapons, available at
http://disarmament.un.org/cab/register.html (last visited Apr. 9, 2003).
40. See Index of/docs, available at http://www.wassenaar.org/docs/ (last visited
Apr. 15, 2003). To promote more effective controls, the Wassenaar Arrangement is
exploring ways to increase transparency in the transfer of conventional arms.
41. The first major academic conference, held at the American Academy of Arts
and Sciences in 1994, was reported in Lethal Commerce: The Global Trade in Small
Arms and Light Weapons 33 (Jeffrey Boutwell et al., eds., 1995).
42. For influential publications by the UNIDR on this topic, see, for example,
Swadesh Rana, Small Arms and Intra-State Conflicts (1995) and Aaron Karp, Small
Arms Control: The Need for Coordination, 2 Disarmament Forum 5 (2000).
43. In the United States, for example, a leading role in promoting global small
arms controls has been played by the Brady Center to Prevent Gun Violence, headed
by Sarah Brady and James Brady, former presidential Press Secretary, who was
disabled by a handgun in a failed assassination attempt upon President Reagan. See
Brady Center, at http://www.bradycampaign.org/facts/index.asp.
44. See The Commission of Nobel Peace Laureates' Initiative to Control Arms
Transfer, available at http://www.arias.or.cr/Eindice.htm. To date, this campaign has
been endorsed by eighteen individuals and organizations who have been awarded the
Nobel Peace Prize. A coalition of NGOs has also drafted an international convention
based on the principles laid out by the Nobel laureates.
International Action Network on Small Arms ("IANSA"), which has
become the biggest international network that has existed on any
issue since the global landmines campaign. It is a group of over 300
NGOs, which currently include faith-based groups, educational
groups, human rights groups, social development groups, public health
and medical groups, democracy groups, justice groups,
conflictresolution groups, and anti-gun lobbies.45
As I have argued elsewhere, networks can achieve only so much by
exerting outside pressure. To be genuinely effective, they need
someone sympathetic, inside the horizontal intergovernmental
process, who can harness their pressure and champion their cause.
Into this picture finally entered a governmental norm sponsor, the
Secretary-General of the United Nations, who in his 1995 "Call to
Action," encouraged the international community to turn its focus on
what he called the weapons "that are actually killing people in the
hundreds of thousands."4 In response, UN advisory teams and
experts began to convene to develop expertise on the issue and to
strategize about potential multilateral solutions. Kofi Annan, the
current UN Secretary-General, heightened that commitment in his
"We The Peoples" Report issued in conjunction with the September
2000 Millennium summit, when he called for a worldwide effort to
prevent war by, inter alia, reducing "[the] illicit transfers of weapons,
money, or natural resources" that help fuel ethnic and territorial
Critically important was the conceptual move that converted small
arms from a back-burner arms control issue into a pressing human
rights and development issue. Early on, the North and South divided
on how to treat this question. The southern countries did not want
anyone interfering with their small arms, understandably reasoning
that because they could not afford nuclear weapons, rough equity
demanded that the arms they could afford should flow relatively
unregulated. If the big countries could have nuclear weapons, the
small countries reasoned, they ought to be allowed to have their small
arms. But once the United Nations and NGOs in these countries
started to make the factual case that the prevalence of small arms was
a direct cause of the destruction of economic, human rights, and rule
of law structures within these countries, key leaders within those
countries acquired an incentive to band together with their
developedcountry counterparts to begin discussing a global regulatory process.
These negotiations began to give rise to the negotiation and
conclusion of regional and global measures at the intergovernmental
level. In 1997, the United States and twenty-seven other Western
Hemisphere nations concluded the Inter-American Convention
Against the Illicit Manufacturing of and Trafficking in Firearms, the
first international agreement designed to prevent, combat, and
eradicate illicit trafficking in firearms, ammunition, and explosives."
The OAS Convention gave impetus to the United Nations' 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, which
was designed to build upon and globalize the standards incorporated
in the regional Convention.49 In 1998, the fifteen EU nations entered
into a political commitment to frame a code of conduct to govern
small arms transfers.5" Later that year, twenty-one nations met in
Oslo, Norway for the first intergovernmental small arms conference.
The Oslo Final Document, "Elements of a Common Understanding,"
called for global support of eleven ongoing international regulatory
efforts. Shortly thereafter, about ninety countries plus numerous
NGOs met in Brussels for a conference on "Sustainable Disarmament
for Sustainable Development," which issued a call to action seeking
an integrated approach to disarmament and development.5 1At about
the same time, sixteen member states of the Economic Community of
West African States ("ECOWAS"), led by Alpha Oumar Konare,
then-President of Mali, declared a three-year renewable moratorium
on the production, import and export of light weapons in the West
African region.52 At the December 1999 U.S.-E.U. summit in
Washington, the United States and the European Union released a
statement of "Common Principles on Small Arms and Light
48. See Inter-American Convention Against the Illicit Manufacturing of and
Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials, Nov.
1997, Treaty Source (signed by the United States and 28 other OAS member states),
available at http://www.iansa.org/documents/regional/reg5.htm.
49. See G.A. Res. 55/255, UN GAOR,
55th Sess. (2001
), available at
50. See EU Joint Action of 17 Dec. 199
/34 (1999) (adopted by the Council
on the basis of Article J.3 of the Treaty on the European Union's Contribution to
combating the destabilizing accumulation and spread of small arms and light
weapons), available at http://www.iansa.org/documents/regional/EUjoint.pdf.
51. See The Oslo Meeting on Small Arms, An International Agenda on Small
Arms and Light Weapons: Elements of a Common Understanding (July 13-14, 1998),
available at http://www.iansa.org/documents/regional/2000/jan_00/oslomeeting.htm;
see also Sustainable Disarmament for Sustainable Development, The Brussels Call for
Action (Oct. 13, 1998), available at http://www.unesco.org/cpp/uk/declarations
52. As a follow-up to that meeting, the United Nations African Institute for the
Prevention of Crime and the Treatment of Offenders ("UNAFRI") has begun to
survey the small arms legislation, regulations, and law enforcement capacities of
various African countries.
Weapons," in which they pledged to observe the "highest standards of
restraint" in their small arms export policies, and took further steps to
harmonize their export practices and policies.53
These conferences, followed by a series of UN resolutions, created
the impetus for the first United Nations Global Conference on Illicit
Trade in Small Arms and Light Weapons in all its aspects, which
finally took place in July 2001. The Conference marked the Bush
Administration's first engagement with this issue. As in so much
recent multilateral activity-the International Criminal Court, the
Kyoto Protocol, its policies toward Iraq-the Administration's
participation engendered more enmity than progress. There was
some hopeful progress: a consensus UN program of action was finally
developed, which enumerated the humanitarian and
sociodevelopmental consequences associated both with illicit weapons
trade and weapons accumulation.54 Some global norms were
articulated to guide the actions not just of states, but also of
intergovernmental organizations, NGOs and individual experts in
addressing the problems of small arms proliferation, availability and
misuse. The participants made halting commitments toward
implementing regulatory measures at a national, regional and global
level. But the norms discussed were not binding and the norms
themselves were underdeveloped. No legally binding measures were
adopted, no statements were made regarding transparency or civilian
possession of firearms, and the role of nonstate actors both in creating
and curing the problem was not clearly elaborated. Most troubling, all
discussion still took place within an arms control, rather than a human
rights, framework, giving participating states too much freedom to
place these issues on the back burner, while citing other more pressing
The most memorable speech at the UN conference was delivered
by U.S. Undersecretary for Arms Control, John Bolton, who declared
what became quickly known in the small arms trade as "Bolton's Do
Nots." After saying that the United States supported the restraint on
light weapons, he qualified that support by declaring: " We do not
support measures that would constrain legal trade ....  [we] do not
support the promotion of international advocacy ....  [w]e do not
support measures limiting trade in SA/LW [small arms and light
weapons] solely to governments ....  [t]he United States will not
support a mandatory Review Conference," and-most amazing to a
student of American constitutional law- "[t]he United States will
not join consensus on a final document that contains measures
abrogating the Constitutional right to bear arms. ' 5 This
constitutional reference was needlessly provocative. For the
conference documents had made amply clear that no treaty proposal
would affect legal gun ownership nor were they designed to affect any
national gun possession laws . 7
Senator Dianne Feinstein quickly challenged Undersecretary
Bolton's view, pointing out that the Second Amendment had never
been used to overturn any American federal gun law, much less a
treaty, and even less a treaty negotiating position. Indeed, she noted,
in 1939, a man who had been arrested for taking a sawed-off shotgun
across state lines challenged the federal law that prompted his
Amendment, and lost.51
56. John R. Bolton, Statement to the Plenary Session of the UN Conference on
the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (July
availableat http://www.un.iiit/usa/01 _104.htm.
57. In invoking the Second Amendment, Undersecretary Bolton talked proudly of
the U.S. cultural tradition of personal gun ownership, which encouraged the then
Pakistani Foreign Minister to echo that those in Pakistan also had a "proud cultural
legacy" of carrying firearms. Editorial, Bait. Sun, July
, at 16A.
58. In United States. v. Miller, 307 U.S. 174, 178 (1939), the U.S. Supreme Court
ruled that the "obvious purpose" of the Second Amendment was to "assure the
continuation and render possible the effectiveness" of the state militia. Since Miller,
the Supreme Court upheld against Second Amendment challenge New Jersey's strict
gun control law in 1969 and the federal law banning felons from possessing guns in
1980. In the early 1980s, the Supreme Court declined review of a Second
Amendment challenge to an ordinance of the town of Morton Grove, Illinois, which
banned handguns (making certain exceptions for law enforcement, the military, and
collectors). The Illinois Supreme Court and the Court of Appeals for the Seventh
Circuit ruled that not only was the ordinance valid, but there was no individual right
to keep and bear arms under the Second Amendment. Quilici v. Village of Morton
Grove, 695 F.2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). Courts have
now upheld federal laws regulating the private possession of: short-barreled
shotguns, see Miller, 307 U.S. at 174: machine guns, see, e.g., United States v. Rybar,
103 F.3d 273 (3d Cir. 1996), cert. denied, 522 U.S. 80
); United States v. Hale,
978 F.2d 1016 (8th Cir. 1992): United States v. Oakes, 564 F.2d 384 (10th Cir. 1977);
United States v. Warin, 530 F.2d 103 (6th Cir. 1976), cert. denied, 426 U.S. 948 (1976);
and assault weapons, see San Diego Gun Rights Comm. v. Reno, 98 F.3d 1121 (9th
Cir. 1996). They have also upheld laws prohibiting the possession of firearms: by
felons, see, e.g., United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); United States
v. Synnes, 438 F.2d 764 (8th Cir. 1971); Cases v. United States, 131 F.2d 916 (1st Cir.
1942); by persons convicted of domestic violence offenses, see, e.g., Fraternal Order of
Police v. United States, 173 F.3d 89
8 (D.C. Cir. 1999
); and by persons subject to
restraining orders, see, e.g., United States v. Baker, 197 F.3d 211 (6th Cir. 1999);
Gillespie v. City of' Indianapolis, 185 F.3d 693 (7th Cir. 1999); United States v. Spruill,
61 F. Supp. 2d 587 (W.D. Tex. 1999). Courts have also upheld extensive federal
regulation of firearms dealers. See United States v. Decker, 446 F.2d 164 (8th Cir.
1971); cf. Cody v. United States, 460 F.2d 34 (8th Cir. 1972) (upholding requirement
that gun purchasers accurately answer certain questions prior to purchase). For that
reason, even the National Rifle Association has not challenged a U.S. gun law on
Second Amendment grounds in several years. For a more complete listing of articles
Feinstein concluded: "If a sawed-off shotgun is not protected by the
Second Amendment, why does the Administration seem to feel that
the Second Amendment protects the international trafficking of
Even under recent, revisionist readings of the Second Amendment,
which give greater weight to the individual's right to bear arms,
including those by Professors Laurence Tribe of Harvard and my
colleague Akhil Reed Amar of Yale, reasonable regulations on
personal ownership would not be struck down under the Second
Amendment." Thus, the United States could easily engage the treaty
negotiating process without committing itself to a regime that would
affront legitimate Second Amendment concerns. In short, the 2001
UN Conference presents a dramatic missed opportunity, both for the
emerging transnational legal process of global small arms regulation
and for the United States as a potential leader of that process."
III. THINKING ABOUT A SOLUTION
If the last ten years have now produced both knowledge and a
network, that leaves open three questions: First, what norms should
we now develop? Second, what "horizontal process" should we use to
develop and internationalize those norms? Third, how should we
envision a complementary "vertical process," whereby the global
discussing the Second Amendment, see David B. Kopel, The Supreme Court's
ThirtyFive Other Gun Cases: What the Supreme Court Has Said About the Second
Amendment, 18 St. Louis U. Pub. L. Rev. 99, 101 n.9 (1999).
59. Press Release, Senator Dianne Feinstein, Statement on the Bush
Administration's Opposition to a UN Accord to Stem the Flow of Guns Feeding
International Terrorism and Drug Wars (July
), available at
60. See Laurence H. Tribe & Akhil Reed Amar, Well-Regulated Militias, and
More, N.Y. Times, Oct. 2
, at A31 ("The right to bear arms is certainly subject
to reasonable regulation in the interest of public safety. Laws that ban certain types
of weapons, that require safety devices on others and that otherwise impose strict
controls on guns can pass Constitutional scrutiny."); Akhil Reed Amar, The Second
Amendment: A Case Study in Constitutional Interpretation,2001 Utah L. Rev. 88
); see also Randy E. Barnett & Don B. Kates, Under Fire: The New Consensus
on the Second Amendment, 45 Emory L.J. 1139 (1996); Sanford Levinson, The
EmbarrassingSecond Amendment, 99 Yale L.J. 637 (1989); William Van Alstyne,,The
Second Amendment and the Personal Right to Arms, 43 Duke L.J. 1236 (1994).
Predictably, a substantial number of legal scholars and historians dispute the
revisionist account. See, e.g., Carl T. Bogus, The Hidden History of the Second
Amendment, 31 U.C. Davis L. Rev. 309 (1998); David C. Williams, Civic
Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale
L.J. 551 (1991); David C. Williams, The Militia Movement and Second Amendment
Revolution: Conjuringwith the People, 81 Cornell L. Rev. 879 (1996).
61. For the full report of the UN Conference, see Report of the United Nations
Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects,
(July 9-20, 2001). available at http://disarmament.un.org/cab/smallarms/files/aconfl
norms that emerge from the horizontal
internalized into domestic legal systems?
process can become
A. Norms and HorizontalProcess
Here again, the successful global landmines campaign teaches
important lessons. The challenge here, as there, is how best to
generate a law-declaring forum and to foster an interpretive
community capable of announcing and clarifying a clear set of norms.
In the landmines case, the U.S. government initially chose to pursue
its multilateral objectives through UN-sponsored efforts conducted
via the so-called "Geneva Process." In May 1996, the Review
Conference for the United Nations Convention on Conventional
Weapons ("Conventional Weapons Conference") developed a revised
Protocol II to the 1980 Convention. 62 The sixty-one-member UN
Conference on Disarmament, based in Geneva, began considering
limitations on the use of landmines in late 1996. The U.S. government
preferred the Geneva Approach to others because as participants in
this process, major exporters and users of mines, such as Russia and
China, would be bound by the outcome of the Conventional Weapons
Conference. 63 But the Conventional Weapons Conference, run on a
consensus model, broke down when the Mexican government
objected to the consideration of the landmine issue in the Geneva
forum. 4 Frustrated with what they perceived to be a lack of progress
toward a total ban through the UN-sponsored efforts, NGOs and a
number of mid-sized countries switched course and created a new
lawdeclaring forum." They stepped outside established organizational
structures and adopted an alternative framework for generating a
convention, which became known as the "Ottawa Process." Thus,
when the human rights activists who made up the global landmines
coalition realized that they were not going to get a treaty through the
conservative UN process, they shifted to another horizontal process,
which transpired in a forum of their own design.66 As Jody Williams
of the International Coalition to Ban Landmines, put it in her Nobel
Peace Prize acceptance speech: "[W]e invited them to a meeting and
they actually came."67 More than seventy nations ultimately attended
the October 1996 meeting, sponsored by the Canadian government,
and Canadian Foreign Minister Lloyd Axworthy emerged as a leading
cooperating governmental norm entrepreneur." Once the Ottawa
Process was fully engaged, it was only a matter of time before the
flatban Land Mines Convention ultimately emerged.
Only time will tell whether the small arms negotiations will come to
fruition in the UN Conference or in an alternative setting. At this
point, either the nascent Oslo process or the private-public Brussels
process may yet overtake the UN Conference framework. Moreover,
the Nobel Peace Laureates' Initiative, headed by Oscar Arias, has
drafted a set of principles to govern arms transfers that goes much
further than do the statements of the UN Conference.69 Still, it seems
premature to conclude that the UN Conference route has reached a
stalemate or exhausted its effectiveness. What does seem clear,
however, is that an interpretive community has begun to form,
comprised of both governmental and nongovernmental entities, that
has begun actively to debate the contours of the norms at issue. My
own view is that it is far less important which venue this ultimately
happens in-or to put it another way, which horizontal process,
standing or ad hoc, is mobilized-than that the horizontal process
unfold within a setting that combines arms control considerations with
broader human rights and development concerns."'
As important, the norms developed in that horizontal setting should
be bright-line norms. One of the major accomplishments of the Land
Mines Convention was to focus on a clear, bright-line legal rule that
ordinary people could understand, the so-called "flat ban" against the
production and use of antipersonnel landmines.7' But the regulation
of small arms presents a far more difficult problem. For we are a long
way from persuading governments to accept a flat ban on the trade of
legal arms. Given that small arms will continue to be lawfully traded,
what kind of enforceable norms can be developed in the relevant
68. See Dana Priest, Mine Decision Boosts Clinton-MilitaryRelations, Wash. Post,
Sept. 21, 1997, at A22 (explaining how Axworthy helped Canada take the lead in the
campaign to ban land mines).
69. See supranote 32.
70. Significantly, much of the most recent activity has transpired not in a human
rights framework, but in a global crime control setting. The UN Protocol was drafted
in the UN Crime Commission in Vienna as part of the negotiations to conclude the
Convention Against Transnational Organized Crime.
7t. The full text of the Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Antipersonnel Mines and on Their Destruction is
available at http://www.icbl.org/treaty/treatyenglish.html (last updated Feb. 29, 2000).
See Monica Schurtman, The International Campaign to Ban Landmines and the
Ottawa Landmines Treaty: Applications to the Movement to Restrict Small Arms
and Light Weapons Transfers (Feb. 6-7, 2002) (unpublished paper prepared for the
SSRC Workshop on Law and International Relations, on file with the Fordham Law
declaring forum? To be viable, a global regime should incorporate at
least three elements.
First, a marking and tracing regime must be implemented. The
United States is now the major supplier of small arms in the world,72
yet the United States and its allies do not trace their newly
manufactured weapons in any consistent way. Most governments do,
however, mark their weapons and record the marks. Thus, one of the
most significant outcomes of the UN Conference was the
establishment of a UN Committee to develop a regime that could
develop international rules for collating and making available all
global marking and tracing information, thus allowing better
understanding of how lawfully manufactured weapons are diverted to
illicit uses. The UN Resolution establishing the UN Register of
Conventional Arms could be modified so that the United States, and
the ninety other nations that annually submit relevant information to
the Register, could be required to submit information about their
small arms production. In addition, a number of countries have
proposed complementary regional registers that would explicitly
enumerate small arms in areas such as Africa, where small arms
remain the primary weapons of war. In due course, a marking and
tracing norm could be embedded in a treaty: Article VI of the OAS
Convention, for example, calls for marking at the time of
manufacture, importation, and confiscation of firearms, grenades and
other covered weapons, and Articles X1 and XIII further require
various forms of record-keeping and information exchange.73
Second, transparency and monitoring of these processes by
international NGOs are critical.74 The Helsinki Final Act and the
creation of an international NGO network to monitor its "human
dimension" provisions demonstrated the power of international NGO
monitoring as a way of promoting governmental compliance with
Here, the most pertinent recent example may be the unexpected
rise of the global anticorruption movement. In the early '70s, when
the Lockheed scandal broke, the conventional wisdom was that
corruption was an international way of life that could never be
affected by governments, much less transnational corporations, NGOs
or intergovernmental organizations. Yet thirty years later, we see a
rapidly expanding global good-governance movement, marked by the
enactment of U.S. and other national foreign corrupt practices laws,76
an OECD Anti-Bribery Convention,77 and perhaps most significant,
Transparency International -a transnational network of
NGOsand numerous intergovernmental instruments and declarations
dedicated to targeting and eliminating corruption as a way of life.7 9
What made the global anticorruption movement successful, and a
model that could be followed here, was that it promoted a "race to the
top" on anticorruption by forging a transnational network of private
and public entities, including multinational corporations, dedicated
both to self-regulation and to the monitoring of rogue actors.
Third and most important, the horizontal process should produce a
"transfer ban" that would prevent legal arms from being transferred
either to illicit users or to recognized human rights violators."'
Although this would not be easy to do, under our own U.S. domestic
arms law, there are already restrictions on making transfers or licenses
to certain gross violators of human rights who have been so certified
by, for example, the Bureau of Political-Military Affairs at the State
Department, congressional staffs, and my own former bureau at the
State Department, the Bureau of Democracy, Human Rights and
Labor."' There is an array of well-chronicled methods by which small
76. Foreign Corrupt Practices Act, Pub. L. No. 95-213, 91 Stat. 1494 (1977).
77. The text and related documents of the OECD Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions are
available at http://www.oecd.org/pdf/M00007000/M00007323.pdf (Apr. 8, 1998).
78. The Transparency International website can be found at http://www.
79. Examples include: the Lima Declaration, a blueprint for global, multi-sector
action against corruption, formulated at the eighth International Anti-Corruption
Conference held in Lima, Peru in September 1997; the Durban Commitment (1999), a
reaffirmation of the principles expressed in the Lima Declaration and enumeration of
specific courses of action in the fight against corruption; and Principles to Combat
Corruption in African Countries, a statement produced by African government
ministers at a Global Coalition for Africa meeting in 1999. For a list of other African
anti-corruption initiatives and declarations, see the website of the 10th International
Anti-Corruption Conference, available at http://www.10iacc.org/download/workshops
80. See Barbara Frey, The Availability and Misuse of Small Arms and Light
Weapons in the Context of Human Rights and HumanitarianNorms (Feb. 6-7, 2002)
(unpublished paper prepared for the SSRC Workshop on Law and International
Relations, on file with the Fordham Law Review) (arguing for norm requiring states
to take effective measures to prevent the transfer of small arms to human rights
81. For a list of links to specific provisions within U.S. law (and international
agreements) that place restrictions on U.S. "security assistance," including arms
transfers, see Federation of American Scientists, Arms Sales Monitoring Project,
United States Arms Transfer Eligibility Criteria Index Page, available at
http://fas.org/asmp/campaigns/legislationindex.html (last visited April 10, 2003). For
links to bills and public laws relating to arms transfers and foreign military assistance,
arms are diverted from legal to illegal markets, including falsification
of documents, diversion from surplus, illegal resale, purchases by
surrogates, and illegal sales by dealers and brokers. 2 Each of these
forms of illegal transfers needs to be separately targeted, and the UN
Conference Programme of Action singles out some twenty-five local
measures that could be taken to do so. For in the end, the only
meaningful mechanism to regulate illicit transfers is stronger domestic
B. Vertical Process:Internalization
The greatest challenge we face in this process is to create a legal
framework that combines a treaty framework built around clear
norms with concrete, conforming domestic obligations to be executed
by the participating nations. The UN Conference laid out a list of
measures to be implemented by nation-states at the national level,
ranging from enacting laws regulating small arms production to
preventing the use of small arms against children in armed conflict. 4
Yet as important as specific domestic legal regulatory enactments is
the broader strategy for internalization of the emerging global norms.
As I have noted above, my broader focus, both as an academic and
human rights advocate and policymaker, has been upon developing
and promoting strategies of internalizations that help to "bring
international law home." 5 If a norm against illicit transfers can be
see Federation of American Scientists, Arms Sales Monitoring Project, Bills and
Public Laws, available at http://fas.org/asmp/resources/billlaws.html (last visited Apr.
10, 2003). And for links to fact sheets, testimony, and reports relating to U.S. arms
export policy, see Federation of American Scientists, Arms Sales Monitoring Project,
Government Documents, available at http://www.fas.org/asmp/resources/govt
docs.htm (last visited Apr. 10, 2003). The website of' the Bureau of Democracy,
Human Rights and Labor can be found at http://www.state.gov/g/drl/.
82. See, e.g., Human Rights Watch, No Questions Asked: The Eastern Europe
Arms Pipeline to Liberia (201)1).
83. See generally Wendy Cukier, Combating the Illicit Trade in Small Arms and
Light Weapons: Strengthening Domestic Regulations (March 2001), available at
84. See Report of the United Nations Conference on the Illicit Trade in Small
Arms and Light Weapons in All Its Aspects (July 9-20, 2001), available at
85. See Koh, BringingInternationalLaw Home, supra note 33. In the book that I
am completing, tentatively entitled "Why Nations Obey: A Theory of Compliance
with International Law," I argue that international law norms can be internalized into
domestic legal systems through a variety of legal, political and social channels. For
four recent examples, see Brief Amici Curiae of Mary Robinson et. al, Lawrence v.
Texas, 123 S.Ct. 1512 (2003) (No. 02-102) (supporting the overturning of Bowers v.
Hardwick by urging judicial internalization of an emerging international norm
through a specific constitutional channel: the concept of "ordered liberty" in due
process law); Harold Hongju Koh, The 2001 Richard Childress Memorial Lecture: A
United States Human Rights Policy for the 21st Century, 46 St. Louis U. L.J. 293 (2002)
(arguing for a U.S. human rights policy of norm-internalization); Harold Hongju Koh,
Why America Should Ratify the Women's Rights Treaty (CEDA W), 34 Case W. Res.
internationalized through the emerging horizontal process described
above, by what techniques can we further promote the legal, political
and social internalization of that emerging international norm into
domestic legal systems?
Here the OAS Convention provides the best model. The
InterAmerican Convention, inter alia, requires each state: to establish a
national firearms control system and a register of manufacturers,
traders, importers, and exporters of these commodities; to establish a
national body to interact with other regional states and a regional
organization advisory committee; to standardize national laws and
procedures with member states of regional organizations; and to
control effectively borders and ports. Other key provisions include
requiring an effective licensing or authorization system for the import,
export, and in-transit movement of firearms, 6 an obligation to mark
firearms indelibly at the time of manufacture and import to help track
the sources of illicit guns, and requiring states to criminalize the illicit
manufacturing of and illicit trafficking in firearms.
These national approaches should be supplemented with a
private/public network that expressly targets arms brokering and
financial transfers. Here too, a useful transnational legal process
model has emerged in the area of conflict diamonds. As we have
recently learned, one of the major sources of funding for Al-Qaeda is
diamonds, which have been a major source of the conflict in Sierra
Leone. Recently, a group of companies and governments gathered in
the "Kimberley Process," in Kimberley, South Africa, to negotiate the
terms of a diamond control regime that would track every diamond
export, import, and re-export transaction through monitoring, audited
chains of custody, criminal penalties, tamper-proof packaging, and
standardized record-keeping. At this writing, the United States, the
world's largest importer of diamond jewelry, has not yet accepted the
Kimberley Process's proposed documentation and record-keeping
requirements. Yet Congress has been considering versions of the
Clean Diamonds Act, a diamond import bill supported by the
diamond industry and human rights, humanitarian and religious
groups, which would prohibit the import of diamonds from countries
that have not met Kimberley standards. This is a bill the United
States government clearly needs to support."
J. Int'l L. 258 (2003); Harold Hongju Koh, Paying "Decent Respect" to World Opinion
on the Death Penalty, 35 U.C. Davis L. Rev. 1085 (2002) (arguing for internalization
of international standards regarding the execution of persons with mental
86. The U.S. Bureau of Alcohol, Tobacco, and Firearms and the United States
Customs Service, for example, have engaged in interdiction and investigative efforts
along the southwest border of the United States, and U.S. attorneys in that region
have increased their efforts to prosecute arms traffickers caught attempting to
smuggle firearms into the United States.
87. See Clean Diamond Trade Act, S. 2027, 107th Cong. (2002). See generally
Other potential enforcers of the norms of the small arms regime
include corporate actors, who should be enlisted in the internal
monitoring of private security companies whom they employ. In
Guatemala, for example, the Chamber of Industry reports that private
security companies employ more than twice as many security agents
as the number of civilian police officers in that country. Police in El
Salvador report that approximately twenty-five percent of the
weapons confiscated nationwide are taken from private security
agents."5 In recent years, a number of innovative human rights
partnerships have arisen among governments, businesses and civil
society, which have sought to internalize human rights obedience into
corporate behavior by suggesting minimum corporate standards for
human rights performance in the day-to-day conduct of large
multinational corporations.5" During my time at the State
Department, we applied this approach to work with corporations,
other governments, and the NGO community to improve human
rights performance in the oil, mining and energy sectors. In
particular, we at the State Department worked with the government
of the United Kingdom, human rights and corporate responsibility
groups and large American and British companies to develop
Voluntary Principles on Security and Human Rights to govern oil
company security arrangements in such key developing countries as
Colombia, Indonesia and Nigeria. The objective of these principles
was to provide companies with practical guidance on how to prevent
human rights violations in dangerous environments. These principles
could easily be extended and globalized to include as corporate
Holly Burkhalter, Blood on the Diamonds, Wash. Post, Nov.
, at A23; Alan
Cowell, 40 Nations in Accord on 'Conflict Diamonds,' N.Y. Times, Nov. 6, 2002, at
A6. No major action has been taken on the Congressional act since March 2002. See
http://www.thomas.loc.gov. In January 2003, Physicians for Human Rights ("PHR")
published an update on the Kimberley Process Certification Scheme, available at
http://www/phrusa.org/campaigns/sierra-leone/update-Ol0303.html (last visited Mar.
31, 20)3). According to Burkhalter, the PHR U.S. Policy Director, the completed
agreement is considered by activists to be a "half full glass." In retrospect, she
concludes the "US delegation to the talks played a decidedly unhelpful role on the
questions that mattered most to the NGOs-independent monitoring and a strong
Kimberley Secretariat." Id.
88. See William Godnick, Tackling the Illicit Trade in Small Arms and Light
Weapons (Feb. 6-7, 2002) (unpublished paper prepared for the SSRC Workshop on
Law and International Relations, on file with the Fordham Law Review).
89. The two best known of these are the Global Sullivan Principles, see Leon H.
Sullivan, Moving Mountains: The Principles and Purposes of Leon Sullivan 106-12
(1998), and UN Secretary-General Kofi Annan's Global Compact initiative. With
respect to human rights, the Secretary-General's Global Compact asks world business
to: "support and respect the protection of international human rights within their
sphere of influence": and "to make sure their own corporations are not complicit in
human rights abuses." The Global Compact: The Nine Principles, available at
security requirements the monitoring of small arms held and used
abroad in a corporation's name by private security agents."'
Yet another factor contributing to the ease of illicit arms transfers
in the western hemisphere has been the presence of financial and tax
havens throughout the Caribbean, which facilitate money-laundering
that supports arms brokering and large-scale weapons trade. Article
XII of the Inter-American Convention9' borrows from the
information disclosure provisions of international tax treaties and
usefully stipulates that States Parties should exchange information on
"techniques, practices, and legislation to combat money laundering
related to illicit manufacturing of and trafficking in firearms. 9 2
More fundamentally, however, to fully effectuate the goals of the
small arms regime, the United States must focus on supply-side
solutions and destination controls. Supply-side controls mean
destroying existing stockpiles of small weapons. Through bilateral
and multilateral diplomacy, our government should start a process of
promoting exchanges and destruction of existing small weapons
caches. 3 One promising precedent occurred in September, 2000,
when American, Albanian, Norwegian and German diplomats signed
a memorandum of understanding on the destruction of over 130,000
90. See Fact Sheet, U.S. Department of State, Bureau of Democracy, Human
Rights and Labor, Voluntary Principles on Security and Human Rights (released
December 20, 2000) [hereinafter The Voluntary Principles], available at
http://www.state.gov/www/ global/human-rights/001220_fsdrl-principles.html. For a
summary of these principles, see Press Briefing, Harold Hongju Koh, Assistant
Secretary of State for Democracy, Human Rights, and Labor, et al., Voluntary
Principles on Security and Human Rights (Dec. 20, 2000), available at
http://www.state.gov/www/policy remarks/2000/001220_koh hr.html; Sean D.
Murphy, Contemporary Practice of the United States Relating to International Law:
Voluntary Human Rights Principlesfor Extractive and Energy Companies, 95 Am. J.
Int'l L. 626, 63
); Bennett Freeman et al., A New Approach to Corporate
Responsibility: The Voluntary Principles on Security and Human Rights, 24 Hastings
Int'l & Comp. L. Rev. 423 (2001). The Voluntary Principles focus on three areas of
mutual concern to the companies and human rights groups. First, they focus on risk
assessments-a set of human rights considerations, whether legal, technical or
political, that the companies take into account as they structure and revise their
security arrangements in light of local conflicts. Second, they focus on interactions
between the companies and public security-whether military or police units. Third,
the Principles focus on interactions between the companies and private security
firms-an area of particular concern to the British oil companies, who had been
criticized for human rights abuses committed by private firms to whom they had
subcontracted their security work.
91. Article XII, OAS Inter-American Convention, available at http://www.dod.
Mil/acq/acic/treaties/small/oas/oasconvention.htm (Nov. 13, 1997) [hereinafter OAS
92. OAS Convention, supra note 91, Art. XIII (1)(c).
93. The United States has recently contributed experts and funds to destroy small
arms, light weapons and ammunition in Liberia, Haiti, and the former Yugoslavia and
agreed with ten nations of southeast Europe on a program to destroy illicit arms in
their regions. The United States is also apparently working with the Euro-Atlantic
Partnership Council ("EAPC") to prevent illicit weapons shipments to the Balkans
and central Africa, and to improve security of weapons holdings.
small arms and light weapons in Albania. The Albanians agreed, with
the support of the United States, Norway, and Germany, to destroy all
weapons collected from the civilian population in the aftermath of the
1.997 crisis. In addition, all weapons collected by the Albanian
Government in the future, along with surplus military stocks of small
arms, are also scheduled for destruction. 4
These weapons destructions measures, however, must be combined
with supply-side control measures within the United States. The
startling fact remains that the United States itself manufactures and
sells some $463 million in light weapons annually." It exported those
weapons in 1998 to 124 countries, in five of which those weapons were
later used to fire on U.S. and UN soldiers9. Reasonable domestic
supply-side solutions would include new export control statutes
imposing strict and administrable destination controls.9 7 Domestic
regulation must extend to mandatory reporting"x and criminal
punishment of non-state actors, particularly arms brokers, who are
currently regulated only in the most tangential way. We need to apply
the drug-trafficking and people-trafficking model to the application of
arms brokering.'9 To address this concern, in 1996, President Clinton
94. See, e.g., Bureau of Political-Military Affairs, U.S. Dep't of State, Small
Arms/Light Weapons Destruction in Albania Memorandum (Sept. 7, 2000), available
at http://www.state.gov/www/global/arms/bureau-pm/smallarms/000907 albania.html.
95. See Human Rights Watch, supra note 5 (indicating that the U.S. sold $463
million worth of light weapons to 124 countries in 1998).
96. See Norton-Taylor, supra note 9.
97. For example, the United States has suspended arms exports to Paraguay since
1996 on the grounds that arms export license applications to that country exceed the
normal, reasonable domestic needs of a given importing country. In addition, U.S. law
prohibits arms and munitions exported from the United States to be re-transferred by
the recipient without prior U.S. approval, and U.S. government audits are conducted
if diversions or transshipments are suspected. The United States has also
implemented sanctions and embargoes established by the United Nations by
prosecuting those who violate embargoes under U.S. law. In addition, the United
States has refused to authorize commercial or government-to-government weapons
transfers to such conflict areas as the Democratic Republic of the Congo, Ethiopia,
Eritrea, and Angola, whose governments are not subject to UN embargoes.
98. In 1996, the President signed legislation amending the Foreign Assistance Act
of 1961 to require the annual publication of information about arms authorized for
commercial export by the United States that fall below the previously existing
reporting thresholds for U.S. large-arms transfers. The report includes detailed,
country-by-country information on the numbers of firearms, ammunition, and other
"small-ticket" defense items authorized by the United States for export, setting a
standard for transparency that could easily be adopted by the 33-nation Wassenaar
99. An International Protocol Against Illicit Firearms Trafficking is currently
inder negotiation in the UN Crime Commission in Vienna as part of the negotiations
to conclude the Convention Against Transnational Organized Crime. For a parallel
approach toward the global trafficking in persons scheme, see Testimony Before the
House Committee on International Relations, The Global Problem of Trafficking in
Persons: Breaking the Vicious Cycle on "Trafficking of Women and Children in the
International Sex Trade" (Sept. 14, 1999) (statement of Harold Hongju Koh,
Assistant Secretary of State for Democracy, Human Rights, and Labor),
signed arms brokering legislation that amended the Arms Export
Control Act to give the State Department greater authority to
monitor and regulate the activities of arms brokers. " "' Key provisions
included the requirements that all brokers must register with the
Department of State, must receive State Department authorization
for their brokering activities, and must submit annual reports
describing such activities. The United States is currently working to
promote adoption of similar laws by other nations by incorporating
such a provision into the international crime protocol being
negotiated in Vienna.
Perhaps the strongest mode of internalization of supply-side
controls would be through an enhanced search for technological
solutions. One particularly intriguing idea is the idea of promoting
production of smart or "perishable ammunition," e.g., AK-47 bullets
that would degrade and become unusable over time. Ironically, by
focusing exclusively on controlling the delivery mechanism-the guns
themselves-the small arms activists may have overlooked a surer
longer-term solution to the international firearms problem.
Finally, American legal scholars are not mere bystanders in this
exercise. They can promote norm-internalization through the analysis
and development of legal and policy arguments regarding
international gun controls. Three areas come to mind. The first is the
thorough constitutional research on the Second Amendment that has
been invoked by NGOs to reject efforts by John Bolton and others to
apply the Second Amendment argument extraterritorially. 1 The
second has been interdisciplinary research by Ian Ayres and John
Donohue rejecting the empirical hypothesis that more guns produce
less crime in American society." 2 Some international relations
specialists have extrapolated from the "more guns, less crime"
hypothesis to suggest that arms control efforts in heavily armed
"warlord states" would be similarly counterproductive, claiming that
heavily armed societies-e.g., Ingushetia and Somaliland-exhibit a
lower level of conflict, because the near-universal possession of guns
deters all carriers.'( 3 The Ayres-Donohue research effectively
counters that conclusion with massive empirical evidence that
demonstrates that, if anything, in most of the jurisdictions sampled (at
available at http://www.state.gov/www/policy-remarks/1999/9909t4_kohsextrade.
100. Law enforcement officials made the first seizure of munitions under the
provisions of the new legislation in November 1999.
101. See supra notes 57-58.
102. Ian Ayres & John J. Donohue, II, Shooting Down the "More Guns, Less
Crime" Hypothesis, 55 Stanford L. Rev. 1193 (2003) (responding to John R. Lott, Jr.,
More Guns, Less Crime: Understanding Crime and Gun-Control Laws (2000)).
103. See, e.g., William Reno, Arms, Internal War, and the Causes of Peace (Feb. 6-7,
2002) (unpublished paper prepared for the SSRC Workshop on Law and
International Relations, on file with Fordham Law Review).
least in the United States) more guns have been associated with more,
rather than less, crime. Third, legal scholars can identify new norms
that might target some of the most egregious examples of small arms
abuse. One possible avenue might be to focus on the criminalization
per se, under international criminal law and complementary domestic
law, of such acts as bringing small arms into refugee camps. Everyone
who holds a small arm in a refugee camp claims to be doing so for
"self-defense." In fact, however, as I have personally witnessed, the
mere presence of small arms in such camps functions like fat on fire:
transforming refugee camps into child soldier recruitment centers,
enabling the persecution of innocents, eliminating the realistic
possibility of safe havens, and greatly reducing the prospects for
disarmament and demobilization of defeated forces.
So let me say in closing that we have a problem: a world drowning
in guns. What should we do about it? We have knowledge, we have
networks, we have an emerging horizontal process to generate norms.
We now need to use those emerging norms to create an international
framework, and then to internalize those norms into our domestic law,
while at the same time pursuing supply-side solutions, and
harmonizing our own national approach with those of other countries.
I know that many of you are saying to yourself: "This is a fantasy. It
cannot be done." As I say this, you look at me like I must have looked
at Oscar Arias on the day he admonished me: concerned, a bit guilty,
but with a hint of belief that a global solution just might be possible.
To fan that belief, we need to think about our government and
ourselves. First, what role will our government play? In the future, I
think, America's foreign policy choice will not be isolationism versus
internationalism, but what kind of internationalism will the U.S.
government pursue? Will it be a power-based internationalism or a
norm-based internationalism? As the Bush Administration has
recently shown, the world views America as genuinely schizophrenic
in its embrace of the global human rights system. In the history of the
human rights movement, the United States has been exceptional in
many ways, but it has been most exceptional, I believe, in its global
leadership role in human rights. If anything, it is our job, as human
rights activists and academics, to urge our own country to follow more
consistently the better angels of its own national nature.""5
And what should we, as U.S. citizens, do? When I left the
government several years ago, my major feeling was less of a job well
done than of too much work left undone. After a few sleepless nights,
I wrote for myself a list of issues on which I needed to do more in the
years ahead. One of those issues was the global regulation of small
Some may say this goal is too remote to achieve. But as Oscar
Arias asked me: "Don't we have enough guns? If we really care about
human rights, shouldn't we do something about the guns?" In a
recent interview, Arias said:
The children of the world, what they want, what they need, are
health clinics and schools-not guns, not tanks, not armed
helicopters, not fighter jets.... There is a difference between the
typical politician and the typical statesman. A typical politician is
that person who tells people what people want to hear. The
statesman tells people what people need to know. America has too
many politicians and too few statesmen.'06
So let me close then, not with declarations, but with questions.
Shouldn't we, as lawyers and citizens committed to human rights, tell
our elected officials to be statesmen and not politicians? And why
shouldn't we, as lawyers and law students committed to promoting
human rights in theory and practice, work together to ensure that our
children's children do not grow up in a world drowning in guns?
Exceptionalism, 55 Stanford L. Rev. 1479 (forthcoming May 2003).
106. Kitty Felde, OscarArias: Harsh Words for the U.S. from a Voice for Peace and
Prosperity,L.A. Times, Feb. 20, 2000, at M3 (Interview with Arias).
2. Light weapons fall just below the seven categories of large weapons reported to the UN Register of Conventional Arms, and are thus an intermediary category between "small arms" and "major weapons." The UN Department for Disarmament Affairs website, including official documents pertaining to the Register , is available at http://disarmament.un.org/cab/register.html.
3. See generally Mark Bowden, Black Hawk Down: A Story of Modern War ( 1999 ).
4. See, e.g., David Weissbrodt et al., International Human Rights: Law, Policy & Process 38 - 83 (3d ed. 2001 ) (describing efforts to create Optional Protocol to the Convention on the Rights of the Child on involvement of children in armed conflict).
5. See, e.g., Human Rights Watch, My Gun Was as Tall as Me: Child Soldiers in Burma , 2002 , availableat http://www.hrw.org/reports/2002/burma/ (Oct. 2002 ).
6. In addition, the NGO Coalition to Stop the Use of Child Soldiers estimates that "hundreds of thousands more" have been recruited into various armed forces. See Coalition to Stop the Use of Child Soldiers , The Child Soldiers Global Report ( 2001 ), availableat http://www.child-soldiers. org (last visited Apr. 1 2003 ).
7. "Reliable witnesses in the U.S. military and in Mogadishu now place the [death] count at nearly 500 dead-scores more than was estimated at the timeamong more than a thousand casualties. Many were women and children." Mark Bowden, A Defining Battle , Phila. Inquirer, Nov. 16 , 1997 , available at http://inquirer.philly.com/packages/soniailia/nov16/rangI16.asp.
8. See Small Arms Survey 2001: Profiling the Problem Ihereinafter SAS 2001 ] available at http://www.smallarmssurvey.org/Yearbook200 I/Chapter_2.pdf. See generally Michael Klare , The Kalashnikov Age, 55 Bull. of Atom. Sci. (Jan./Feb . 1999 ), available at http://www.bullatomsci.org/issues/1999/j1f99/jf99klare. html ("[Tlhe most deadly combat system of the current epoch lisi the adolescent human male equipped with a Kalashnikov-an AK-47 assault rifle . ").
9. SAS 2001 , supra note 8, available at http://www.smallarmssurvey. org/Yearbook2001; see also Richard Norton-Taylor, When Will UK Bite the Bullet on Gun Traffic? , Guardian, July 11 , 2001 , at 15.
10. Bureau of Political Military Affairs, U.S. Dep't of State, Background Paper, Can Small Arms and Light Weapons Be Controlled? (June 2 , 2001 ), available at http://www.state.gov/t/pm/rls/fs/2001/3768.htm.
11. See depiction of the Mozambique flag at http://encarta.msn.com/encnet/ refpages/RefMedia.aspx?refid= 461533911 .
12. See Watchlist on Children and Armed Conflict, Issue 1 : Afghanistan, at http:// www.watchlist. org/reports/afghanistan.report.pdf (Oct. 15 , 2001 ). The Guardian reports: "Afghanistan is the leading centre of unaccounted weapons, with at least 10m in circulation . From 1979 to 1989 , the CIA channeled Dollars 2bn in weapons aid to the mojahedin there." A World Awash with Guns , Guardian, July 1 , 2001 , at 15.
13. See Rajiv Chandrasekaran, Iraq Arms Civilians as Second Line of Defense Against U .S., Wash . Post Foreign Service, February 5 , 2003 , at Al.
14. A World Awash with Guns, supra note 12.
15. Id .
16. See Klare, supra note 8.
17. See Harold Hongju Koh, Asst. Sec. of State for Democracy, Human Rts. and Labor, On-the-Record Briefing on Recent Trip to Indonesia (Oct . 12 , 1999 ), available at http://www.state.gov/www/policy-remarks/ 1999 /991012_koh indonesia. html.
18. See Lora Lumpe , The U.S. Arms Both Sides of Mexico's Drug War , 61 Covert Action Q. 39 , 39 - 46 ( Summer 1997 ), available at http://www.fas.org/asmp/ library/articles/us-mexico.htm; see also Anne-Marie O'Connor & Jeff Leeds , U.S. Agents Seize Srtuggled Arms , L.A. Times , Mar. 15 , 1997 , at 19. The intercepted
37. In understanding this question, I am greatly indebted to Edward . J. Laurance of Monterey Institute of International Studies for his excellent unpublished paper, The History of the Global Effort to Regulate Small Arms , presented at SSRC Small Arms Workshop, Washington, D.C. ( Feb . 2002 ) (on file with the Fordham Law Review) .
38. For a definitive treatment of arms control of conventional weapons during the Cold War, see Edward J . Laurance , The International Arms Trade ( 1992 ).
45. For the history and membership of this network, see the IANSA home page at www .iansa.org.
46. Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of the United Nations , U.N. Doc . A/50/60 - S/ 1995 /1 (Jan. 3, 1995 ), available at http://www.un.org/Docs/SG/agsupp.html.
47. Kofi A. Annan , "We the Peoples": The Role of the United Nations in the 21st Century , at 3, available at www. un.org/millennium/sg/report/ (last visited Apr. 9 , 2003 ).
53. See U.S .- EU Statement of Common Principles on Small Arms and Light Weapons , 17 Dec. 1999 , available at http://www.iansa.org/documents/regional/ dec_99/eustatement-dec17_ 99pdf .pdf.
54. See Report of the United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (July 9-20 , 2001 ), available at http://disarmament.un.org/cab/smallarms/.
55. The strong arms control focus and weak normative framework is evident in, for example, the Programme of Action that state participants in the UN Conference adopted , available on-line at http://disarmament.un. org/update/un2001/article2.htm.
62. The Conventional Weapons Conference agreed to ban plastic and other nondetectable mines and to use only self-destructing mines outside marked areas . See Landmines. Dual Track , Economist, Jan. 25 - 31 , 1997 , at 42.
63. See Frances Williams , Momentum Grows for UN Landmine Ban Talks, Fin . Times, Jan. 22 , 1997 , at 4.
64. See Mexico Blocks Conclave on World Land-Mine Ban , Wash. Post, June 13, 1997 , at A33.
65. See Jessica Mathews , The New, Private Order, Wash. Post, Jan. 21 , 1997 , at Al 1 (detailing the growth of the new conference ).
66. For discussion of how the Ottawa Process unfolded , see Koh, Bringing InternationalLaw Home, supra note 33, at 658-63.
67. See Jody Williams , Nobel Lecture (Dec. 10 , 1997 ), available at
72. See , e.g., U.S. "Supplier of Choice" ft)r Weapons Sales, Report of the Arms Trade Resource Center (Aug. 20 , 2001 ), available at http://www.worldpolicy. org/projects/arms/updates/082001 .html,
73. See General Assembly, Twenty-Fourth Special Session , Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials (Nov. 13 , 1997 ), available at http://www.iansa.org/documents/regional/reg5.hm.
74. For an overview of NGO concerns and strategizing about small arms monitoring, see Small Arms and the Humanitarian Conununity: Developing a Strategy for Action , Report of the Proceedings of the Nairobi Conference (Nov. 18-20 , 2001 ).
75. See generally William Korey, The Promises We Keep: Human Rights, the Helsinki Process and American Foreign Policy ( 1993 ).
104. See , e.g., Kathi Austin , Armed Refugee Camps as a Microcosm of the Link Between Arms Availability and Insecurity (Feb. 6-7 , 2002 ) (unpublished paper prepared for the SSRC Workshop on Law and International Relations, on file with the Fordham Law Review); Human Rights Watch, Liberian Refugees in Guinea: Refbulement, Militarization of Camps and Other Protection Concerns, (Nov . 2002 ), available at www.hrw.org/reports/2002/guienea.
105. For elaboration, see generally Harold Hongju Koh , On American