Recent developments relating to compliance with multilateral treaties
in the area of disarmament and international security.

The newsletter of the Markland Group

Issue No. 11, June 2000

This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 26, No. 2, Summer 2000. The version that follows has been slightly edited since it first appeared in the Bulletin.

In This Issue

I. Biological Weapons

II. Legality of Use of Force – Proceedings in the ICJ – Yugoslavia v. NATO Countries

III. Book Review - Doxey: UN Sanctions

IV. Sanctions Against Iraq

V. Article Review - Tucker: “After Detection – What?” The Iklé Article Revisited

VI. What Ever Happened to “Star Wars”?

I. Biological Weapons

Progress towards a Protocol on a verification and compliance mechanism continues but the end is not in sight. The Ad Hoc Group responsible for negotiating the document convened for its 18^th session in January and February 2000, and it was apparent that deep rifts remain on issues such as the need to protect military and commercial secrets, inspection and monitoring procedures and the cost of verification. Commenting on these issues, Henrietta Wilson, writing in VERTIC’s newsletter “Trust and Verify” says, “While all of these concerns are legitimate, they may be used by some states to slow down the talks in the hope of preventing the emergence of a strong Protocol or, indeed, any Protocol at all.” (For a free e-mail copy of the VERTIC newsletter, see www.vertic.org and follow instructions.)

An excellent summary of the background and current status of the negotiations is to be seen in an article by Jenni Rissanen in Disarmament Diplomacy, January/February 2000. (Copies are available on the net at www.acronym.org.uk)

A series of Evaluation Papers covering each article of the Rolling Text by Malcolm Dando, Graham S. Pearson and Nicholas A. Sims is available on the net at www.brad.ac.uk/acad/sbtwc.

II. Legality of Use of Force – Proceedings in the ICJ – Yugoslavia v. NATO Countries

Summary by Sonya Nigam, LLM*

On March 29, 1999 NATO commenced air strikes against Yugoslavia with a view to stopping the Yugoslav army’s actions of “ethnic cleansing” against the Kosovar-Albanians in Kosovo.

On April 29, 1999 the Federal Republic of Yugoslavia instituted proceedings before the International Court of Justice against Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the united Kingdom and the United States of America, all member states of NATO. Yugoslavia sought to hold these countries responsible for violating their obligation not to use force. It also made a request for provisional measures, asking the Court to order these countries to “cease immediately its acts of use of force” and to “refrain from any act of threat or use of force” against Yugoslavia.

In its declaration recognizing the jurisdiction of the Court, Yugoslavia limited its consent to “disputes arising or which may arise after the signature of the present Declaration”. The declaration was signed on April 25, 1999.

Yugoslavia invoked 4 bases of jurisdiction:

Article 36, para. 2 if the ICJ Statute in the case against Belgium, Canada, the Netherlands, Portugal, Spain and the United Kingdom;

Article 38, para. 5 of the Rules of Court in the case against France, Germany, Italy and the United States;

Article IX of the Genocide Convention in the cases against all ten respondents; and two treaties from the 1930s in the cases against Belgium and the Netherlands.

In two of the cases, those against Spain and the United States, the Court found that it manifestly lacked jurisdiction, as neither of these two countries had consented to the jurisdiction of the Court. These cases were ordered to be removed from its List.

In the other eight cases, the Court refused the request for provisional measures, finding that it did not have prima facie jurisdiction, which is a prerequisite for the issue of provisional measures. These cases, however, continue to remain on the docket, as their issues are not prejudged by any findings on the request for provisional measures.

There was general agreement that the Court did not have prima facie jurisdiction over France, Germany, Italy and the United Kingdom. However, the same concurrence did not exist regarding the cases against Belgium, Canada, the Netherlands and Portugal.

In relation to these four states, Yugoslavia claimed jurisdiction on the basis of Article 36, para. 2. The court found it did not have prima facie jurisdiction because the incident took place prior to April 25, 1999, the date of Yugoslavia’s declaration. Since the Yugoslav declaration only recognized the Courts jurisdiction for events after this date, the dispute was outside the Court’s temporal limit. In her separate opinion Judge Higgins explains:

Certainly there were events, occurring after April 25^th, that were the subject of the Federal Republic of Yugoslavia’s complaint (though these were not specified by date or in any detail). But the Court has not been able to see a dispute arising only after April 25^th.

This argument was strongly criticized in the dissenting opinions of Judges Shi, Vereshchetin and Vice-President Weeramantry.

The text of the judgments and opinions can be found at www.icj-cij.org.

III. Book Review - Doxey: UN Sanctions

Margaret P. Doxey, United Nations Sanctions: Current Policy Issues; Revised Edition (Halifax: Dalhousie University, 1999) pp. 57.

Reviewed by Douglas Scott*

Dr. Doxey is Emeritus Professor and Senior Research Associate, Department of Political Studies, Trent University, Ontario. She is the author of Economic Sanctions and International Enforcement (2^nd ed.; Macmillan for the Royal Institute of International Affairs, 1980); and International Sanctions in Contemporary Perspective (2^nd ed.; Macmillan/St. Martins Press, 1996); and numerous articles in the international organization field. The following is an excerpt from the annotated bibliography by Chris Spencer entitled Global Issues of the 21^st Century – UN Challenges (www.cyberus.ca/~spencer).

A very useful booklet containing information up to April 99. Appendix offers basic facts about all sanctions imposed under UN Charter (Chapter VII). Text examines the four issues subject to debate.

Domestic economic costs of sanctions to ‘sending’ states and prospects for burden-sharing. Options: financial help; tariff adjustments; technical/humanitarian assistance; specific help with sanctions enforcement.

Mitigation on humanitarian grounds of sanctions-induced hardships in ‘targets’. Ideally, punishment fits the crime, but scope for: improving ways to determine need; handling humanitarian exemptions; avoiding abuse through monitoring.

Determining scope for direct targeting of leaders and elite groups. Types of targeted sanctions: personal travel restrictions; limit/end international bodies’ membership (privileges); restrict air links; cultural/sports boycotts; financial sanctions (freezing assets) – most promising, but speed, information, selection, discipline are critical.

Improved administration and enforcement. Much effort is underway to improve the work of Sanctions Committees; humanitarian issues will be handled better, but to detect/control serious violations of sanctions regimes remain strictly limited.

V. Article Review - Tucker: “After Detection – What?” The Iklé Article Revisited

by Michael J. Tucker, in Multilateral Approaches to Non-Proliferation, Ed. Andrew Latham, York University Press, 1996.

Reviewed by Sean Howard, Ph.D.*

The issue of how to respond to violations of arms control accords is both complex and momentous. While there are many different types of treaty and transgression, the basic political question is compellingly simple: how to sensibly but effectively ‘deal with cheats’? Fred Iklé’s 1961 paper in Foreign Affairs, ‘After Detection – What?’ has long been considered a classic consideration of this theme. In 1996, Michael J. Tucker conducted a long overdue and thoroughly rewarding challenge inspection of Iklé’s analysis.

Iklé is naturally preoccupied with the Cold War confrontation and the need, as he perceives it, for the West to be prepared to react to Soviet non-compliance by increasing military spending and deployment, avoiding a repetition of the calamitous failure to respond vigorously to Nazi Germany’s illegal rearmament. To help both detect and deter cheating, Iklé stresses the value of structured cooperation between Western allies in the form of a multilateral agency to monitor compliance and report on its work to the United Nations.

Tucker assesses the extent to which the end of the Cold War increases the prospects for international cooperation in monitoring compliance while also producing new dilemmas in effectively responding to detected violations. While the basic response urged by Iklé – reciprocal abrogation and punitive military counteraction – is obviously inappropriate to many contemporary challenges, particularly the threat of proliferation, a clear alternative strategy, adequately balancing carrot and stick, is yet to emerge.

Addressing the key issue of the role of the UN Security Council, Tucker observes that “only the most egregious breaches” of arms control agreements are likely to come to its attention. This may be so, but might it not be possible to establish a mechanism that would promote a more general awareness of non-compliance issues as part of the Council’s ongoing operation? Iklé’s paper suggested that the US Congress establish a ‘Joint Committee on the Observance of Arms Controls’. Perhaps the time is ripe, as Richard Butler has recently argued, for such a body in the UN. As a tentative example, the College of Commissioners, designed to support UNMOVIC in Iraq, might be expanded to form a permanent Arms Control College to help maintain a political and practical focus on compliance issues. Tucker’s analysis, while commendably thorough and incisive in its treatment of the new challenges of responding to detection, is more reticent than Iklé’s in suggesting ways forward.

VI. What Ever Happened to “Star Wars”?

By Samina Khan, & Douglas Scott*

While it is widely perceived that the Strategic Defence Initiative (SDI) or “Star Wars”, was abandoned because it was technically too difficult and too expensive, Harold Koh, Professor of International Law at Yale Law School, currently on leave, serving as the Clinton Administration's Assistant Secretary of State for Human Rights, Democracy and Labor, has a different explanation – one that should be of interest to international lawyers.[1] Koh argues that when the Reagan Administration proposed in 1985 to “reinterpret” the ABM Treaty in such a way as to permit the SDI project to proceed, various transnational actors and non-governmental organizations mobilized elite and popular constituencies to challenge the Adminstration’s plan.[2] The challenge took place within Senate hearings, debates over other arms control treaties, journal articles, and op-ed columns. As a result, Congress withheld appropriations from SDI tests that did not conform with the treaty; and the Senate adopted a position on the ABM Treaty Interpretation Resolution, which reaffirmed its original understanding of the treaty. In response, the Reagan and Bush Administrations maintained that their broad reinterpretation was “legally correct,” but announced that they would comply with the original understanding as a matter of “policy.” In 1993, the episode ended when President Clinton repudiated the unilateral Reagan reinterpretation and announced that his administration would abide by the original ABM Treaty interpretation.[3]

Koh, in effect, argues that this episode supports his “transnational legal process” theory, which posits that nations obey international law best when it becomes “internalized” through a process of repeated interaction, norm enunciation and interpretation, involving states, governments, NGOs engaged in transnational public law litigation in domestic courts, international commercial arbitration and legislative lobbying.

The US is now faced with the son of SDI. Possibly less ambitious in the technical sense, the proposed national missile defense program (NMD) runs into the same kind of trouble with the ABM treaty. Unlike 1985, however, the US administration is seeking Russian government consent rather than presuming to alter the ABM treaty unilaterally. As the ABM reinterpretation debate illustrates, pursuing national interests by working within coalitions of allies and through international treaties can be as least as effective as pursuing national interests through unilateral approaches that reject treaty use. The ABM reinterpretation debate is evidence of the inherent power of treaties, and can therefore be seen as a victory for treaty making.

[1] H. Koh, “Why Do Nations Obey International Law?” (1997) Y L.J. 2599 [hereinafter Why Do Nations?].