Obligations to protect the right to life: Constructing a rule of transfer regarding small arms and light weapons

Small arms and light weapons are among the principal tools used to violate human rights. Cheap, durable, easy to transport, hide, and operate, firearms are the means by which human rights are violated in every conceivable way in every conceivable setting. Firearms are misused by state agents, from police to security forces, to violate a spectrum of civil and political rights through acts of genocide, arbitrary executions, arbitrary arrests, torture, and forced displacement. Non-state actors carry out grievous abuses with firearms, whether they are organized militia, private security forces, terrorists, or criminals. Small arms are also used to violate economic, social, and cultural rights, directly and indirectly. The brandishing of a firearm is enough to break up a cultural gathering, evict a family from its home, or interfere with the right to organize a workplace. The culture of fear that characterizes a community saturated by guns inevitably diminishes access to education, health care, and the ability to meet an adequate standard of living, among other basic human rights. Despite these arms-related human rights violations, leadership in developing normative responses to the negative impacts of unrestricted arms flows has not come from the human rights community, but instead is centered in the international disarmament community. In December 2006, 153 members of the UN General Assembly voted to take the first steps toward drafting a treaty to establish common international standards for restrictions on arms transfers that contribute to conflicts, displacement, and serious human rights violations (UN General Assembly 2006a).1 The General Assembly's action is one of several important legal initiatives generated by the disarmament community including efforts to harmonize standards on marking and tracing, trade, brokering, and end-use verification-to address the adverse impacts on security, human rights, and economic and social development from the unrestricted flow of small arms and light weapons across borders (UN Secretary-General 2008). The increased international attention on the linkage between arms transfers and human rights violations suggests the need for a more focused consideration of that linkage by the human rights community it-self. This chapter will address one part of the human rights analysis: The extraterritorial human rights obligations of states regarding their arms transfers to states or non-state actors where there is a significant risk that those arms will be used to commit serious human rights violations, including violations of the right to life.2 International human rights law has developed fairly clear standards regarding the proper use of small arms by state agents, including law enforcement, in their own territories. Human rights jurisprudence on due diligence also suggests that states must prevent foreseeable violations to persons living in their territories by keeping guns out of the hands of those likely to misuse them (Frey 2006, 5-8). This chapter will review an area of less legal clarity: The extraterritorial legal obligations of an arms- exporting state regarding violations of the right to life committed with those arms in another state. The chapter will begin with an overview of the broad-reaching obligations of states to protect the right to life. It will then review extraterritorial obligations to protect the right to life as a customary norm and under treaty law, and how such obligations are enforceable. Finally, the chapter will consider whether there is a customary norm, or rule of transfer, that is emerging to address the more specific issue of small arms transfers based on their likely misuse. Evidence of this emerging rule of transfer may be found in the existing limitations on arms transfers under international law. Those limitations include prohibitions imposed under international security law and international humanitarian law, and by state practice, as exhibited by regional export regimes, and through voluntary steps suggested as part of the arms trade treaty being discussed by states in the UN General Assembly.