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Recent developments relating to compliance with multilateral
treaties
in the area of disarmament and international security.
The newsletter of the Markland Group
This newsletter was originally published as part of
the Canadian Council on International Law Bulletin, Vol. 26, No. 1,
Winter 2000.
Looking back over the past fifteen years, those of us interested in compliance methodology can observe some striking changes in the nature of the problems that engage our attention.
In 1987, the Markland Group took out a full-page ad in a local newspaper in which we complained about the US plans for launching a program known as the Strategic Defense Initiative. Since its purpose was to develop missiles that would destroy incoming missiles, we said it would be a violation of the Anti-Ballistic Missile Treaty (AMB Treaty). Those were the days when most of the items on the public agenda relating to compliance with treaties were concerned with bilateral treaties, like the ABM, or bipolar treaties like the Intermediate Nuclear Forces Treaty.
About that time, however, negotiations for a new treaty covering chemical weapons were getting into high gear. It became apparent that there was a need for attention to be given to the compliance provisions of the Chemical Weapons Convention (CWC). Compliance-oriented scholars soon recognized that the methodology needed for dealing with compliance under multilateral treaties (like the CWC) was quite different from what is needed under bilateral and bipolar treaties.
The most obvious difference was the need for an inter-governmental body to undertake the collection of data relating to compliance. The structure and powers of this body was a particularly contentious issue during the negotiations for the CWC. Was it to be the type of body set up under the ABM Treaty, namely a “consultative committee”, which would make decisions only by consensus? Or was it to be a genuine administrative body with authority to make decisions by majority vote?
It was only in 1991 that the CD agreed that the supervisory body should decide by vote. Accordingly, the Convention now provides that the Organization for the Prohibition of Chemical Weapons (OPCW) makes decisions by two-thirds majority. Nowadays, it seems well accepted that treaty administering organizations, such as the OPCW, should be able to make decisions by vote rather than by consensus. Shortly after the CWC was negotiated, the two-thirds-majority rule was adopted for the two treaties that followed it, namely the Nuclear Test Ban Treaty and the Landmines Convention.
The CWC’s compliance regime contained another important feature, namely mandatory legislation. The effect of Article VII of the CWC is to require each State Party to enact legislation making it a crime for an individual to engage in any activity prohibited to States Parties under the treaty. The concept of mandatory legislation was new at the time the CWC was being negotiated. The Markland Group had been advocating its adoption as a measure for enhancing compliance. Nowadays, it appears to be widely accepted. The two recent disarmament treaties, the Nuclear Test Ban Treaty and the Landmines Convention, both contain provisions for mandatory legislation.
Mention should be made of a feature of the CWC’s compliance regime that the US fought hard to have excluded. During negotiations, the US objected to any provision that would set up a procedure by which an authoritative decision would be made on the question whether a State Party was violating the Convention. In the end, authority to make such a decision was omitted from the Convention, at least in express terms, but many would argue that the authority can be taken to exist by implication. Express authority was also omitted in the Nuclear Test Ban Treaty, but as with the CWC, authority by implication will likely be assumed. The Markland Group classifies this type of provision under the heading of evaluation, and lists it among the five basic elements that we recommend for disarmament treaties.
Today’s agenda in the field of compliance methodology must necessarily include consideration of the use of sanctions by the Security Council as an instrument for enforcing disarmament treaties. All disarmament treaties eventually rely on the Security Council as the ultimate enforcer when all else fails. Since military measures are ineffective and impractical for enforcing disarmament treaties, the Council is compelled to rely on sanctions.
The Iraqi problem has provided the Security Council with its biggest test of its ability to enforce a disarmament treaty against an unwilling party determined to resist. Although the Council’s problem with Iraqi is not usually thought of as one of enforcing a disarmament treaty, it should be remembered that Iraq’s obligations to dispose of its weapons of mass destruction arise under Resolution 687 which was framed after the Gulf War as a cease-fire agreement which Iraq ratified.
The Council has been using sanctions for almost ten years against Iraq and there are many who are urging the Council to cease and desist – arguing that sanctions are inhumane and ineffective. The issue as to whether the use of sanctions is an appropriate instrument for enforcing disarmament is therefore near the top of the agenda of those of us in the field of compliance methodology.
Another matter of concern to the toilers in the field of compliance methodology is the absence of a compliance regime in the Biological Weapons Convention. Although diplomatic negotiations have been underway since 1991 aimed at agreeing on the text of a compliance protocol to be added to the Convention, progress has been slow. Certain countries are opposed to any regime that calls for close scrutiny of biological laboratories or other activities. It appears that the bio-tech industry is not prepared to put its trust in the regime being developed to protect confidential information. The latest issue of Trust and Verify, the newsletter issued by the VERTIC, stated the problem this way:
There is still, however, heated debate over the level of intrusiveness of a BW verification regime… Bio-technology industries, especially in the United States, tend to oppose an intrusive regime for fear that valuable commercial proprietary information may be compromised.
At stake is information encountered by inspectors or other secretariat personnel which the inspected country considers to be sensitive on commercial or military grounds and which the country considers to be unrelated to the weapons prohibited under the Treaty. What is needed is a set of rules to prevent sensitive extraneous information from falling into the hands of parties that are unfriendly to the country from which the information was obtained.
The task of developing a confidentiality regime with rules of this nature had to be faced in the context of the CWC. Those responsible for negotiating the Convention failed to agree on a confidentiality regime, so that the Convention contains only an outline of the regime. The responsibility for completing the job was left to the Preparatory Commission. The elaborate and complicated regime developed by the Commission was put in place about two years ago and its efficacy and trustworthiness are still being tested.
It can be assumed that the confidentiality regime under the CWC has been closely scrutinized by those responsible for negotiating the BWC. Judging by the fact that the bio-tech industry is still concerned about the danger of losing its sensitive information, it would appear that the CWC regime has been found lacking.
We are left wondering whether the elaborate regime developed for the CWC can be considered adequate. If there are real problems, it means that the matter of a confidentiality regime must be put near the top of the agenda for those in the field of compliance methodology. If the diplomatic process is having difficulties, the task of developing a reliable confidentiality regime could benefit from more input from the non-governmental academic/expert community.
As an academic field of study, compliance methodology is still in its infancy. Many unanswered questions have yet to benefit from scholarly examination. The improvement of arrangements for ensuring confidentiality of extraneous information is only one of many topics needing input from non-governmental experts.