The Scope and Implications of a Tracing Mechanism for Small Arms ...

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its provisions have a direct read across for investigations into the illicit small
arms market including, for example, Articles 7 (Record-keeping) and 8
(Marking). The Protocol is supplementary to the UN Transnational
Organized Crime Convention, and Articles 18 (Mutual Legal Assistance), 26
(Measures to enhance cooperation with law enforcement authorities), 27
(Law enforcement cooperation) and 29 (Training and technical assistance)
within the Convention provide the legal framework for multi-jurisdictional
cooperation, including tracing enquiries.
However, the Protocol and its mother Convention have limitations
when it comes to “policing” the small arms market. For example, the
“scope” of the Protocol limits its provisions to those, which do not involve
State-to-State transactions, or State transfers where national security
interests may be compromised. Therefore, in examining how to build on
existing practices, it is important to differentiate between State-owned arms
manufacturing industries and those in the private sector (including
commercial arms dealers). Second, it is important to differentiate between
the types of transaction and transfer involved. In general, these can be
categorized as State-to-State; State to non-State actors; commercial to
State; commercial to non-State actors, and dealer-to-dealer. The next stage
is to determine which aspects of the international arms trade can
realistically be controlled through transparent measures, such as the UN
Firearms Protocol, and those which are potentially outside due to national
security interests.
In making this analysis, it is important to remember that whilst Stateto-State
transactions or State transfers may not be the source of illicit supply,
they can be the start of a process that ultimately results in diversion and
illicit trafficking. Therefore, it is vital that post-event access to a State’s
records is made available to assist in tracing.
As a general rule, every transaction or transfer of military small arms
licensed by the State or involving State-owned arms manufacturers should
be open and transparent and, regardless of the States involved, mirror the
transparency agreements contained in such politically-binding treaties as
the OSCE Document and the Wassenaar Arrangement. However,
realistically there may be limited occasions which fall outside and, for
legitimate national security reasons, there will be little opportunity for law
enforcement agencies to successfully trace the weapons involved. 9