Model law against the illicit manufacturing of and trafficking in firearms, their parts and components and ammunition, second revised edition

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Author(s):
UNODC
03 Dec 2014
Pages:
182
ISBN:
9789210568340 (PDF)
http://dx.doi.org/10.18356/5cd5bf5d-en

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It is hoped that the Model Law, as revised, remains a useful and practical voluntary tool, to facilitate the provision of legislative assistance to Member States, as well to guide policy makers, legal advisors and legislators, who wish to review or amend their domestic legal framework or adopt new legislation in a manner consistent with the Firearms Protocol and other relevant regional and international instruments, and will promote and facilitate international cooperation in preventing and combating criminal activity relating to firearms. The model legislative provisions contained in the Model Law are not meant to be transposed as such, but require careful consideration and customization to the specific domestic legal system in which they are supposed to operate.
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Expand / Collapse Hide / Show all Abstracts Table of Contents

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  • Preface
    The Model Law against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition was developed by the United Nations Office on Drugs and Crime (UNODC) in response to the request of the General Assembly to the Secretary-General to promote and assist the efforts of Member States to become party to and implement the United Nations Convention against Transnational Organized Crime1 and the Protocols thereto.2 It was developed in particular to assist States in implementing a legislative regime consistent with the provisions contained in the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime.3 Consequently, the Conference of the Parties to the United Nations Convention against Transnational Organized Crime, in its decision 4/6, adopted at its fourth session, urged States parties to the Firearms Protocol to strengthen their national legislation in a manner consistent with the Protocol, and requested the Secretariat to facilitate, whenever possible, technical assistance to States parties facing difficulties in its implementation; and also requested the Secretariat to develop technical assistance tools to assist States parties in the implementation of the Firearms Protocol.
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  • Expand / Collapse Hide / Show all Abstracts Introductory provisions

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    • General provisions
      Depending on the national legal system and legislative drafting practice, States may choose to introduce a preamble and provisions setting out the general scope of the law and its adoption process. The following draft articles are designed to assist States in drafting such preliminary and introductory provisions of their domestic legislation and are not mandatory under the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition, supplementing the United Nations Convention against Transnational Organized Crime.
    • Definitions
      There is no mandatory requirement that terms used in the Protocol be defined in domestic law, although national legislatures may find it necessary to adopt or amend legislative definitions to ensure that other legislative requirements apply to the full range of subject matter specified by the Protocol.
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  • Expand / Collapse Hide / Show all Abstracts Mandatory provisions

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    • Manufacturing
      This chapter addresses the requirements under the Protocol to prevent the illicit manufacturing of firearms, their parts and components and ammunition. The Protocol implicitly requires that manufacturers hold a licence or other authorization to manufacture firearms and ammunition, but leaves it to States’ discretion to require a licence or authorization for the manufacture of parts and components. The Protocol also implicitly requires States to establish a competent authority responsible for issuing a licence or authorization to manufacture firearms.
    • Marking
      Article 8 of the Protocol obliges States to require marking of firearms at the time of manufacture, import and transfer from government to civilian stocks. Such markings assist in the identification and tracing of firearms. The Protocol also requires States to encourage manufacturers to develop measures against the removal or alteration of markings. Annex I (Additional considerations) provides further suggested text that drafters can consider for inclusion in their national legislation, including non-mandatory provisions on the marking of parts and components and ammunition and regulatory provisions on the method of marking.
    • Record-keeping
      This chapter addresses the record-keeping requirements under article 7 of the Protocol. The Protocol requires States to “ensure the maintenance” of certain information pertaining to firearms and, where feasible, their parts and components and ammunition. However, the Protocol does not specify whether suchrecords should be kept by the State itself or by persons and entities engaged in manufacturing, importing, exporting and so on. It is up to each State to determine whether records should be kept by the State and/or by persons and entities engaged in firearms-related activities. Annex I (Additional considerations) provides further suggested text that drafters can consider for inclusion in their national legislation.
    • Deactivation of firearms
      These draft provisions regarding deactivation are only necessary and relevant if a State does not recognize a deactivated firearm as a “firearm”.
    • Import, export and transit of firearms, their parts and components and ammunition
      Article 10, paragraph 1, of the Protocol requires States to establish or maintain an effective system of licensing or authorization to control the import and export of firearms, their parts and components and ammunition. The Protocol also requires that States take measures on international transit of firearms, their parts and components and ammunition. Such a system must ensure that suchitems are not exported to or through countries that have not authorized the transfer (article 10, paragraphs 2 and 4) and that the content of the documents used for legal import and export is sufficient to support the offence of trafficking (article 10, paragraph 3). States must also take measures to enhance accountability and security associated with their import and export system (article 10, paragraph 5).
    • Criminal offences: illicit manufacturing
      This chapter contains the three mandatory criminal offences related to illicit manufacturing of firearms, their parts and components and ammunition as required by article 5 of the Protocol. Those offences are:
    • Criminal offences: illicit trafficking
      Illicit trafficking is one of the “central” offences established by the Protocol. Article 3, subparagraph (e), of the Protocol establishes two specific mandatory criminal offences in relation to illicit trafficking: (a) any transnational transfer of firearms, their parts and components and ammunition without legal authorization; and (b) any transnational transfer if the firearms are not marked in accordance with article 8 of the Protocol.
    • Criminal offences: marking
      This chapter contains two mandatory criminal offences related to marking of firearms as required by article 5 of the Protocol. The offences are:
    • Criminal offences: offences specific to deactivated firearms
      The application of the following provisions will depend on whether a State has deactivation standards in place that require a firearm to be rendered permanently inoperable (as is consistent with the general principles of deactivation stipulated by the Protocol, article 9, subparagraph (a)) and thus incapable of reactivation or conversion into a firearm (and effectively destroyed); or whether it has deactivation standards in place that do not require the firearm to be rendered permanently inoperable, but which contemplate reactivation of the deactivated firearm or conversion into a functioning firearm. Although the latter form of deactivation is not consistent with the general principles of deactivation stipulated by the Protocol, it is acknowledged that, in practice, some States dohave deactivation standards that contemplate reactivation of the firearm. As noted in the commentary following the definition of “Manufacture” (draft article 4, subparagraph (m), of this Model Law), where a State has deactivation standards in place that do not require deactivated firearms to be rendered permanently inoperable, but which contemplate the reactivation of a deactivated firearm, the term “manufacture” should be defined to include “reactivation” so that the provisions of chapter III would apply to any reactivation of a firearm and any unauthorized reactivation would constitute “illicit manufacturing” in accordancewith draft article 31 of this Model Law.
    • Criminal provisions: ancillary offences
      Article 5, paragraph 2, requires States to adopt such legislative and other measures to establish as criminal offences attempting to commit, participating as an accomplice and organizing, directing, aiding, abetting, facilitating or counseling the commission of the offences established in the Protocol.
    • Seizure, confiscation and disposal
      This chapter addresses the requirements of article 6 of the Protocol relating to the confiscation, seizure and disposal of firearms, their parts and components and ammunition that are or are believed to be illicitly manufactured or trafficked.
    • Jurisdiction
      The Convention requires States to establish jurisdiction to investigate, prosecute and punish all offences established under the Convention and the Protocols. Article 15 of the Convention requires jurisdiction to be established in three circumstances: (a) over all offences committed within the State’s territorial jurisdiction; (b) over all offences committed on board a vessel or aircraft registered to the State; and (c) if the national legislation prohibits the extradition of its own nationals, jurisdiction must be established over the offences committed by them anywhere in the world. This third circumstance is to permit the State to meet its obligation under the Convention to prosecute offenders who cannot be extradited on request owing to nationality. The Convention requires each State party to adopt “such measures as may be necessary”, in recognition of the fact that different legal systems would approach the establishment of jurisdictionin a range of ways. Article 15 of the Convention also contains optional provisions to further extend jurisdiction.
    • Information exchange and international cooperation
      By this Law a national point of contact is established to act as liaison with other States on matters relating to the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition.
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  • Expand / Collapse Hide / Show all Abstracts Non-mandatory provisions

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    • Brokers and brokering activities
      Article 15 of the Protocol requires States that have not yet done so to consider establishing a system for regulating the activities of brokers. This is the only provision in the Protocol that States are required to consider implementing, though it is not mandatory that a State establish such a system. Thus, it is ultimately left to States to decide whether or not to adopt legislation.
    • Simplified procedures for temporary import, export and transit
      As stated in article 10, paragraph 6, of the Protocol, States may choose to adopt simplified procedures to allow private individuals to temporarily import or export firearms, their parts and components and ammunition for verifiable lawful purposes such as hunting, sport shooting, evaluation, exhibitions or repair. This list of activities in the Protocol is not exhaustive. It should also be noted that under article 8, paragraph 1 (b), of the Protocol additional import markings need not be affixed where firearms are imported temporarily for “verifiable lawful purposes”. This provision applies only in cases where States have opted to introduce simplified procedures in accordance with article 10, paragraph 6, of the Protocol.
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  • Expand / Collapse Hide / Show all Abstracts Annexes

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    • Additional considerations
      Annex I to the Model Law contains additional draft text designed to supplement the draft mandatory provisions contained in the Model Law. States are not required to incorporate these provisions into their national legislation in order to comply with the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition itself. The draft text in this annex reflects best practices and principles derived from national practice and existing global and regional instruments on firearms other than the Protocol. This annex is designed to assist States to adopt and implement, at their discretion, a more extensive legislative regime on firearms, their parts and components and ammunition, supplementing the mandatory provisions of the Protocol.
    • List of relevant instruments and documents
    • National deactivation standards
      Article 9 of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition sets out general principles pertaining to deactivation, but does not provide specific, technical guidelines pertaining to deactivating firearms. It is up to States to determine their own deactivation standards. Examples of national specifications are provided below.
    • Destruction methods
      Article 6, paragraph 2, of the Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and Ammunition includes a presumption in favour of destroying firearms, their parts and components and ammunition that have been seized by the State, but the Protocol contains no guidelines or specific requirements with respect to the method of destruction. Accordingly, it is up to States to determine what methods of destruction they use to destroy seized and confiscated firearms, their parts and components and ammunition. In determining the destruction methods to be employed, States could consider the methods described and recommended in the report of the Secretary-General on methods of destruction of small arms, light weapons, ammunition and explosives (S/2000/1092). An extract of the section of the report pertaining specifically to methods of destruction is provided below. States are also encouraged to consult the International Small Arms Control Standards module 5.50, “Destruction: weapons”, which updates and expands upon the report of the Secretary-General in the form of an international standard.
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