United Nations Conference to Review Progress Made in the
Implementation of the Programme of Action to Prevent, Combat, and Eradicate the
Illicit Trade in Small Arms and Light Weapons in All Its Aspects
June 30, 2006
FAIR Trade Group Remarks
By Mark Barnes
Attorney at Law
Mr. President, thank you for the opportunity to speak before you at the
conference today. My name is Mark Barnes and I am an attorney as well as a
registered broker under United States law. I represent the FAIR Trade Group, a
U.S. trade association comprised of businesses involved in the legal import and
export of firearms across international boundaries.
Our membership is concerned with the enactment of overly broad international
regulatory programs that unnecessarily and adversely impact the legal trade in
small arms and light weapons instead of focusing on reducing the illicit trade
in small arms and light weapons. In this regard, the definitions currently
utilized by the international community when referring to small arms and light
weapons do not adequately distinguish between civilian and military firearms.
Any policy that is considered should generally be aimed toward fully automatic
military firearms; that is firearms that continuously fire so long as the
trigger is depressed and held. In other words, machineguns.
The definition of brokering must also be carefully considered. The ITAR
(International Traffic in Arms Regulations), the regulatory regime in the US,
was recently amended to change the definition of brokering activities to include
one or more predicate acts. By making it clear that simply one act, such as the
financing of a defense article, constitutes brokering under U.S. law, and
further, by these same regulations, stating that foreign persons "subject to
U.S. jurisdiction" are captured by brokering, you can see that a wide variety of
people and conduct can be subject to regulation. Is such a model really
necessary at the international level and cost effective in attempting to curtail
potential core problems in the small arms trade? I think not, and urge that
future U.N. work in this area recommend actions which are narrowly tailored to a
specific problem area.
This brings me to my next point. We must have a careful discussion of multi-
jurisdictional overlap. For example, current U.S. brokering law extends U.S.
jurisdiction very broadly. If Nations extend their jurisdictions in an overbroad
manner, brokers will not be able to conduct transactions due to the sheer number
of countries claiming jurisdiction over the broker's conduct. A broker should
only be subject to the jurisdiction of the Nation of which he is a national or
the Nation in which he is truly conducting brokering business.
Additionally, I would like to give my thoughts on the basis for establishing
brokering norms. Before any norms can be established, it is essential that there
is a basis upon which such a norm can be built. To create successful brokering
norms within any Nation, there must be effective import and export regimes
established in each Nation involved in the shipment, transportation and receipt
of firearms. Currently, too many Nations have weak or non-existent import and
export laws. Addressing this issue before pursuing further brokering norms is
key to the success of eliminating the illicit trade in small arms and light
While some believe that brokers are the primary force behind the movement of
firearms, in most cases they are merely the facilitators of sales transactions
between two interested parties already governed by the laws of the sending and
receiving States. Therefore, brokering norms should be focused on who is able to
facilitate a transaction instead of how the firearms themselves are being moved.
The movement of the firearms is typically handled by the underlying parties to
the transaction and is associated with a particular State. Because of this,
placing the burden on brokers through the use of brokering norms will not be
effective if the underlying import and export controls of each individual State
are the source of the regulatory concern.
When the preliminary step of improving the import and export regimes in each
Nation is accomplished, then brokering norms may be considered. Certain
difficulties must be avoided though, if they are to be effective. First, the
brokering norms must be reasonable. Additionally, they should not interrupt or
interfere with the legal trade in small arms and light weapons, both military
and sporting in nature. This necessitates that the definition of a brokering
transaction be narrowly tailored to ensure that a transaction is defined as an
actual transaction rather than, for example, the mere discussion of a possible
I ask that the Group of Government Experts on brokering give serious attention
to these issues during their fall meeting. I recommend that they look at the
precursor steps of establishing effective import and export norms within
individual States before attempting to recommend international brokering norms.
Thank you Mr. President for the opportunity to make these remarks.