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

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A further question concerns whether or not it would be appropriate to
use the Vienna Protocol as a foundation on which to establish the globally
applicable and effective mechanism we are seeking. The Vienna Protocol
has the advantage of being a legally-binding mechanism that is global in
scope. Moreover, being the result of lengthy international negotiations, it is
an undeniably valuable source for comparing the different points of view
surrounding this issue. However, the Protocol was drafted according to a
different philosophy than that of the UN Programme of Action. The
Protocol’s aim is exclusively to fight transnational organized crime, while
the Programme of Action has a much wider scope that also encompasses
arms control and disarmament. The idea of amending the Protocol to build
a binding instrument with a wider objective seems impracticable, given that
this Protocol is supplementary to a Convention that is itself the result of
other negotiations that have given rise to two additional protocols. 57 It
therefore remains to be seen whether the Vienna Protocol could serve as a
basis for the drafting of a different and more ambitious mechanism.
In this case, there is a danger that the new mechanism would probably
be negotiated by the same national representatives who negotiated the
Vienna Protocol. Since they mainly come from “law and order” circles, one
may question whether they would be sufficiently attentive to the objectives
of “disarmament and arms control” set forth in the UN Programme of
Action. The fact that the same kind of difficulties were encountered during
the negotiation of this Programme and of previous discussions 58 suggests
that there is a good chance that they may not be. In addition, this
community of negotiators of the Vienna Protocol may not be sufficiently
open to the advances that are necessary for attaining an efficient
international tracing system—particularly in the areas of registration,
information exchange and scope (ammunition and explosives are not
covered, and State-to-State transfers only partially so).
Let us end with two technical aspects that are useful to keep in mind.
First of all, a Convention may very well contain a reservation clause for
certain articles that are considered by a minority of States as being too
ambitious, and that are less fundamental. In other words, the States are
given the possibility to ratify the Convention, but at the same time to opt
out (either definitively or for a certain period of time) of a certain article for
which this option has been explicitly foreseen. This allows certain provisions
to be retained that would otherwise be eliminated outright. At the same
time, however, it is important that such an option not be misused, because