Arms Trade Treaties and South Africa

A recurring theme by the anti-gun brigade a la Gun Free South Africa, is the repeated reference to South Africa’s “international obligations”. I had heard this a few times from them, the first being the Constitutional Court (CC) thanking them for their ‘invaluable assistance’ in drawing the court to the existence of these obligations, in the SA Hunters decision of June 2018. The second time was the Supreme Court of Appeal (SCA) in the 2020 GOSA decision. GFSA had asked for, and been admitted, as amicus curiae (friends of the court) in both these cases.

It was here that I realised something, namely, that it appeared that nobody in the SA Hunters or GOSA case actually seemed to firstly read these treaties (there are only three of them), and secondly make a reasonable effort to dismiss their application as irrelevant. Some in the firearm community have dismissed these treaties are ‘irrelevant’ because South Africa is a ‘sovereign and democratic state’, which cannot be dictated to by international instruments.

This is gravely erroneous, and should be stopped immediately. The simple reason of ‘why’ is that section 231(2) of the Constitution explicitly makes internal agreements that South Africa is party to, binding in South Africa. If South Africa wishes to avoid a treaty, it simply need not sign. Once it does, there is no way to lawfully ignore application of the treaty.

At this point, I decided that I would read them. I received the heads of argument for the GOSA decision to see which treaties were actually mentioned, and prepared myself for a long read. I was pleasantly surprised at the brevity and simplicity of these treaties, even if the name of two of the three felt as if it took the most time to read (they are extraordinarily lengthy titles, often simply shortened for citation purposes to the “Firearms Protocol” and the “SADC Protocol”. The better named treaty is simply titled the “Arms Trade Treaty”.

Reading the treaties took a few minutes, and analysing them word for word took around two hours, during which time I recorded my observations. These observations are now made into an article below.

It became immediately apparent that the CC and the SCA were unlikely to have actually read the treaties, or at least given them serious thought. The simple reason being that the treaties do not say what GFSA says them to say. In fact, there appears to be little beyond any argument other than ‘these treaties are relevant, the FCA is compliant, and therefore take our word for it’.

The Arms Trade Treaty (ATT)

The first one to consider is the Arms Trade Treaty (‘ATT’) that went into force in December 2014. South Africa signed it in 2013 and is listed as having ratified or otherwise accepted, acceded, or approved it. It is a misnomer that this treaty imposes obligations upon a state to enact domestic control measures upon citizens and domestic entities interacting with other domestic entities. Rather, this treaty is exclusively orientated towards the international arms trade, as can be reasonably inferred from its name. It is the most recent treaty on the international trade of arms, and thus supersedes any other treaty provision also pertaining to the same topic.

The preamble of the ATT explicitly reaffirms the sovereign right of any State to regulate and control conventional arms exclusively within its territory, and pursuant to its own legal or constitutional system. The preamble strongly confirms the nature of the ATT as being directed at regulating the international arms trade. It accordingly regulates the lawful interactions by states and private entities within those states, across international borders.

The principles listed after the preamble includes affirming Article 2(7) of the Charter of the United Nations, namely that the ATT recognises non-intervention in matters that are within the domestic jurisdiction of a state. What follows are the relevant substantive provisions of the ATT that apply to the nature of the ATT as a treaty to regulate the international arms trade.

Article 3 of the ATT requires that a national control system be established, with the task of regulating export of ammunition for large and small arms. Article 4 extends this requirement to firearm parts and components, but without defining them. Article 5 requires a national control list subject to the UN Register of Conventional Arms, and admits that there is no agreed definition of what constitutes a small and light weapon. It is submitted this lack of definition is not material to the purposes of the ATT.

Article 7 seeks to establish a system that mitigates against the export of all types of arms and ammunition to entities that would use them for undermining peace and security, or otherwise commit acts contrary to international human rights law. If it is established that an export is intended to meet these unwanted ends mentioned above, the export must not be authorised to proceed. The exporting state must have the information relating to the export on hand and give it to the importing state if requested.

Article 8 requires that the importing state have the necessary information to provide to the exporting state, should the exporting state wish to satisfy itself that the recipient entity of the shipment is bona fide. To this end, it can reasonably be inferred that the state has a duty to collect the details of parties wishing to send or receive arms shipments, in order to provide this information should it be requested.

Article 9 requires states to regulate arms shipments within its territory in accordance with international law. When this article is read within the broader context of the ATT, it can be noted that this does not apply to transporting of firearms and ammunition between private persons within the jurisdiction of the state in question. Put differently, as soon as a private person within the domestic jurisdiction of the state in question wishes to send/receive firearms or ammunition to/from abroad, only then does the ATT become relevant. Using a practical example, it is submitted that the ATT is not relevant to the business of a firearm dealer in Cape Town that wishes to send a firearm by courier to a customer in Pretoria.

What the ATT would in fact pertain to under this article by way of example, would be a shipment from abroad that is landed at Cape Town, with the intention to travel through the Republic, and over the border into Botswana. This understanding is reinforced considering that the words ‘transit’ and ‘trans-shipment’ are used (‘trans-ship’ means to move cargo from one vessel to another). ‘Transit’ is synonymous with both ‘moving across or through’ and ‘from one destination to another’.

The broader context of the ATT strongly implies the former definition of ‘transit’ is intended, and it can therefore not apply to inter-private shipments within the jurisdiction of the state. To do so would also entail dictating domestic policy, which directly contradicts the preamble of the ATT, as well as Article 2(7) of the Charter of the United Nations.

The chosen definition of ‘transit’ here is reinforced in article 12 when used in the sentence as: “…that are transferred to its territory as the final destination or that are authorised to transit or trans-ship territory under its jurisdiction”. In article 12, ‘transit’ is used outside the already concluded context of a state being the final destination. Trans-shipment merely applies to a shipment that changes mode of transport (air to road for example, or one ship/truck/train to another) as explained previously.

Article 11 intends to mitigate against the diversion of otherwise lawful shipments. Read with article 9, it is intended to apply to international shipments originating in or travelling through South Africa, to a destination in another country, and prevent the diversion of such shipment to prohibited entities.

Article 11 is notably ‘cooperative’ in its nature, requiring states to assess the risk of the diversion of exports in transit, or being trans-shipped, through the state’s territory. In short, this article can reasonably be understood as requiring an export to be ‘sealed’ and properly tracked until it reaches its destination country. Once it reaches the destination country and has been certified as the shipment that was originally dispatched to the country, the ATT has fulfilled its function and no longer applies.

Article 11’s cooperative nature is reinforced by the requiring of any state that detects diversion to notify the state in which it was diverted, and the states possibly at risk by the diversion. It encourages investigation of such incidents, and the examining of recovered shipments that were victims of diversion from their intended destination.

Article 12 declares that states importing or exporting arms must maintain records of such imports and exports. The already discussed definition of the word ‘transit’ comes from this article of record keeping. The article specifically requires that a recorded shipment of arms or ammunition include the following details: quantity, value, model/type, authorised international transfers, arms actually transferred, details of the exporting and importing states, transit and trans-shipment states, and the end user.

Again, ‘transit’ is used exclusively in the context of a shipment travelling via a state, not between persons within the state. It ends requiring such records to be kept for at least 10 years. Article 14 requires states to enforce these requirements as they exist in law enacted to uphold the purposes of the ATT.

Neither the preamble, principles, or the substantive provisions of the ATT, are justification for domestic control, or at least of the nature as chosen by the FCA. This brings forth the question of how domestic legislation could give effect to the ATT. It is submitted that it is as simple as follows in the following two paragraphs.

Require detailed record keeping of imports and exports: As an export, South Africa already records the details of all the contents of the shipment, and requires the details of the sender and recipient (including contact email addresses) to reflect on the permit. This enables an importing state to confirm that the shipment in question has arrived and not been diverted while in transit or being trans-shipped. It also enables South Africa to confirm that said shipment was inspected, and indeed left the country.

Through this, South Africa can inspect and confirm that the shipment sent from abroad is indeed the same shipment received domestically, and thus mitigates against diversion.

The Firearms Protocol

The Firearms Protocol is the abbreviated version of the ‘Protocol Against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, Supplementing the UN Convention against Transnational Organised Crime’ (‘Firearms Protocol’). Quite the mouthful, and it is obvious why the shortened version is preferred.

It is a significantly older treaty than the ATT having been signed by South Africa in 2002 at the United Nations, and focuses on manufacturing and international trade. Like the ATT, it is a misnomer that it is justification for the FCA. There is no conflict between the two treaties, and while the ATT supersedes the Firearms Protocol, the ATT is a more focused embodiment of all the provisions in the Firearms Protocol that pertain to international trade. All aspects of this treaty that deal with something the ATT covers are thus ignored, having been discussed above.

In the preamble it is explicitly declared that the Firearms Protocol is directed at combatting the illicit manufacture and trafficking of firearms intended for unlawful ends. All three of these refer to the international context, not the domestic, and is reaffirmed in article 2 through reference to international cooperation. At no point is specific reference made of these ends pertaining to the domestic situation of a country, and instead, while merely suggesting an international nature here in the beginning, it becomes increasingly internationally orientated as the treaty goes on.

By article 3, it already defines illicit trafficking as involving two or more countries. In any event, the ATT has already affirmed the sovereign right of a state to regulate its domestic matters as it sees best and according to its constitution.

Article 3(f) also defines tracing as the “systemic tracking of firearms and their components from manufacturer to purchaser, for the purpose of assisting the competent authorities of state parties in detecting, investigating and analysing illicit manufacturing and trafficking” (emphasis added). It accordingly requires tracing from manufacturer to purchaser, to meet these ends.

In the ordinary sense of the words of Article 3(f), this cannot be read to include inter-private ownership transfers. This understanding is aided by the definition of ‘trafficking’ as involving two or more states (thereby implicitly requiring some degree of international cooperation, which is outside of the domestic context). Moreover, requiring the licensing of private persons would be adequate in regulating ownership and use by such persons.

Instead, it is reasonably directed at the creation of firearms and ammunition by a manufacturer, and ensuring that these firearms end up in the hands of the lawful recipient, specifically the recipient dealer or state. Note that I do not identify the treaty as applying to the end user as the private individual. This is because it appears that the treaty does not require tracing beyond the dealer (to the ‘end user’ as the individual) or state once it reaches that stage.

Article 3 sets definitions of what constitutes a firearm and ammunition, as currently defined by the FCA. Further, licensing of manufacturers is imposed, to be done in accordance with state law. Neither of these provisions are controversial. Article 4 may exclude state-to-state transaction from the scope of the treaty (one government trading arms with another government), but it would certainly be within the spirit of the treaty if the state were to submit itself to these provisions.

Article 5 requires of states to criminalise illicit manufacturing and trafficking, and illicit altering or falsifying markings. Article 6 requires the confiscation of illicitly manufactured and trafficked firearms and ammunition. Further, to prevent such items falling into the wrong hands, the state is obligated to make a record of any firearms or ammunition confiscated that were illicitly manufactured or trafficked, and then to destroy them. Neither article 5 or 6 are controversial by any means.

Article 8 requires that firearms receive unique markings at the time of manufacture, indicating the country of manufacture, and including marks identifying firearms in government stocks. While the article also asks for a date of import, this is unnecessary if such a firearm is recorded on import on an electronic database and the date marked there against its serial numbers. By virtue of electronic record keeping, this could be applied to temporary imports as well, even though the treaty explicitly excludes them.

It lastly requires that firearms on government stocks for use by government must be uniquely marked as such, if they are to be transferred to civilian stocks. It is submitted that any firearm that enters government service should receive such a mark at the point of manufacture or as it enters government service, and not just when being transferred to civilian stocks.

Article 9 sets a standard for deactivations as rendering permanently inoperable and/or irremovable, so as to prevent such a firearm from ever being reactivated. A certificate stating as such should accompany the firearm. Again, this is not controversial.

Applied to South Africa, the Firearms Protocol would require that all manufacturers of firearms and ammunition be licensed, and criminalise illicit manufacturing and trafficking, and altering or falsifying firearm information. This is already done.

Also required is the registration of manufactured firearms, and the requirement that all imported or manufactured firearms be traced until they reach a licensed dealer or gunsmith. Manufacturers must also mark each central firearm component with a serial number, manufacturer name, country of manufacture, and relevant proof marks. This is already done.

While the treaty exempts states from the scope of the treaty, domestic legislation should adhere to the spirit of the Firearms Protocol and subject them to it. Domestic legislation could also require that any firearm entering government stock bear a unique mark indicating it as intended for and used by the South African government.

Further, there is a higher legal duty of the South African government to give effect to the rights in the Bill of Rights as required by section 7(2) of the Constitution. As such, strict conditions should be imposed to mitigate against corruption affecting state firearms.

The SADC Protocol

The SADC Protocol refers to the SADC convention of the Protocol on the Control of Firearms, Ammunitions, and other Related Materials (‘SADC Protocol’). South Africa signed this treaty in 2001. This protocol is arguably not constitutionally acceptable to South Africa. That said, domestic legislation can and does already make provision for some of the SADC Protocol’s provisions.

The SADC Protocol affirms in its preamble the illicit manufacture and trafficking of firearms as contributing to Africa’s harm. Article 2 affirms the sovereignty of party states to fulfill the obligations in accordance with their domestic law and constitutional frameworks. However, the spirit of the SADC Protocol is contrary to the founding provisions of South Africa’s Constitution.

Article 3 declares the objectives of the treaty as they pertain to the international arms trade to be in accordance with international law, which is now covered by the ATT as the most recent treaty in this respect. Accordingly, any international arms trade provisions are ignored here. Provisions covered by the Firearms Protocol will also be ignored here, as they have also already been discussed.

Article 4 requires parties to seek out and join international conventions and initiatives pertaining to eradicating illicit manufacturing and trafficking, which it can be said South Africa did under the Firearms Protocol and ATT. Article 5 requires the criminalisation of various things also covered by the more recent Firearms Protocol which followed a year after the SADC Protocol. From this point on, the treaty goes beyond the scope of what can reasonably be expected of an international treaty, due to the undue and direct imposition of laws and restrictions upon the citizens of what is a democratic and sovereign state.

The spirit of the SADC Protocol seeks the total prohibition of free civilian firearm ownership, through the imposition on limits a civilian may possess (article 5(3)(a)). It mandates the establishing of a centralized registration of all civilian owned firearms in a state’s territory, which when read with article 5(3)(a), requires individual licensing of firearms to civilians. Such a registry is exorbitantly expensive to maintain, and delivers little, if any, return on the investment by way of reduction in crime and homicides. Article 5(3)(i) requires proficiency training regimes.

Article 5(3)(j) requires the monitoring and auditing of licenses held in a persons possession, and reaffirms limiting firearms that may be possessed. This is not completely controversial and can be accommodated to a reasonable extent. Article 5(3)(k) prohibits the pawning or pledging of firearms and ammunition, and is a direct curtailing of the property rights of South African citizens.

Article 6 requires that the state improve the capacity of the police, customs, border control, military, judiciary, and other relevant agencies, for the implementation of the SADC Protocol. A severe criticism can be directed at South Africa here in that has done none of these; the police service remains regarded as one of the most inefficient and corrupt institutions in the country (according to a Corruption Watch survey), and the borders remain highly porous and poorly protected or enforced. The judicial system is also under significant strain due to the very high crime rate in South Africa, and the Master’s offices in the High Courts are in disarray.

Article 7 requires the creation of criteria for issuing and withdrawing licenses. An electronic database of licensed firearm owners and commercial operators is reasonable and feasible, provided if is not required to record every transfer made between private owners and after the provisions of the ATT are met. Article 7 is unnecessary as even the most liberal legislation will de facto set criteria for a fit and proper person.

Article 8 requires complete national inventories of state-owned firearms and ammunition, and enhanced capacity to manage and maintain secure storage thereof. It also requires that documents issued by licensing authorities can be easily verified. Article 12 requires the state to encourage voluntary surrender programs. Article 13 requires the state to engage in a national public education campaign to enhance public knowledge of the illicit trade, and encourage responsible ownership and management by civilians.

The poor record of the South African government’s ability to control its firearms is well documented. Firearm amnesties that offer immunity from prosecution of illicitly possessed firearms are commendable at an idealism level, but not practical. South Africa has not given effect to article 13.

With respect to domestic legislation, the SADC Protocol should be rejected due to the inexcusable extent to which it interferes in the domestic affairs of citizens of a sovereign country. Further, South Africa should withdraw from this treaty. Any provisions of the SADC Protocol that are reflected domestically, should not be out of any respect or reverence to the SADC Protocol. The SADC Protocol is also superseded by far more appropriate treaties such as the ATT and Firearm Protocol. At best, the SADC Protocol is superfluous and obsolete. At worst, it interferes too much into domestic affairs.