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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
Issue No. 12, October 2000
This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 26, No. 3, Fall 2000. The version that follows has been slightly edited since it first appeared in the Bulletin.
I. Chemical Weapons
Convention – Problems With Challenge Inspections
II. Strengthening
the Enforcement Provisions in the Non-Proliferation Treaty
III. National
Missile Defense — News About the Legal Aspects
IV. The
Special Economic Measures Act — Mr. Axworthy’s Proposals
V. Negotiations
on a Protocol to the BWC — An Update
By Sean Howard*
The 1993 Chemical Weapons Convention (CWC) was the first disarmament treaty to contain provisions for challenge inspections, which allow any State Party to insist on a short-notice inspection of another State Party.
In February, the British Government and the Organization for the Prohibition of Chemical Weapons (OPCW) co-hosted a seminar in The Hague on the issue of challenge inspections (CI). Nine “national papers” presented at the seminar – from Cuba, Canada, China, India, Iran, Pakistan, Russia, South Africa and the UK – were reproduced in the May 2000 issue of the OPCW journal Synthesis. They illustrate an alarming gulf in perceptions of the nature, rationale and utility of challenge in sections, both in the CWC context and more broadly.
Widely heralded as one of its greatest achievements, the Convention’s CI provisions require the Director General of the OPCW to dispatch an inspection team promptly upon the request of any member state. The target state can prevent the inspection only by mustering a three-quarters majority vote in the Executive Council within twelve hours of the request being filed. Under normal circumstances, the maximum period between the filing of a request and the arrival of a team on site is set at only 120 hours, or five days (Article IX.10.23). (For a fuller summary of these provisions, see Douglas Scott, “The Compliance System Under the Chemical Weapons Convention”, in Proceedings of the 1994 Annual Conference of the Canadian Council on International Law.)
No challenge inspections have been requested since the Convention’s entry into force in April 1997. According to the national papers presented by the UK and Canada, such events should be regarded as a normal component of a healthy verification regime. While not abusing the right to call for inspections, states should not feel dissuaded from exercising that right if in reasonable doubt. Canada refers to the fourteenth ‘principle of verification’ adopted by the UN in 1988 (resolution 43/81 B) in which inspection requests are described as “a normal component of the verification process.” For the UK, the long-term goal is to make CIs “more routine”, arguing that only by assuming such a character will the “deterrent power” of the CI provision will be truly effective.
For the other states attending the seminar, making CIs more routine would undermine the political solidarity crucial to the success of the overall regime. In the striking phrase of the Indian paper, one “cannot seriously argue that entering another’s house should be a casual, routine, repetitive activity!” A number of papers stressed the importance of the Convention’s mechanisms for censure and “punishment” if, after an inspection is completed, it is deemed to have been inappropriately sought (Article IX.23). The question thus begged is how to distinguish between reasonable doubt and malicious intent.
South Africa sought to chart a course between these divergent perspectives, advocating an “intermediate step,” a “mechanism which falls between the routine industrial inspection and the politically loaded challenge inspection.” Such a proposal is surely worth consideration. Perhaps options for a “consultative mission” could be examined, containing elements of intrusive inspection without any accusative connotation against the inspected state, and without the state seeking compelling evidence of compliance being castigated for making an unfriendly gesture.
Comments from Ben Sanders
Note: Ben Sanders is the Executive Chairman of the prestigious Program for the Promotion of Nuclear Non-Proliferation (www.soton.acuk/~ppnn). He is a former official with the International Atomic Energy Agency (IAEA). He is a member of The Markland Group’s committee of occasional consultants. He wrote to Compliance Matters on 6 March commenting on the article in Issue No. 7 of Compliance Matters dealing with the enforcement measures for the NPT. The following are excerpts from his letter.
“The remarks, in Issue No. 7 on Measures to Strengthen the Enforcement Provision of the Non-Proliferation Treaty are apt. I have heard the Under-Secretary-General for Disarmament Affairs, [Jayantha] Dhanapala, say similar things.”
[The article in Issue No. 7 argues that an enforcement regime similar to the regime in the Chemical Weapons Convention is needed for the NPT. The article can be seen at www.hwcn.org/link/mkg/issue_no._7.html.]
“An obvious major problem with regard to the enforcement of compliance with non-proliferation measures (and I daresay also with disarmament measures such as, eventually, one hopes, the Comprehensive Test Ban Treaty) is the role of the Security Council. We have seen that in connection with the DPRK and, more recently, with Iraq. The latter case, of course, does not arise from the NPT but from the Council resolutions of the nineties, but it illustrates how disagreement among the P-5 can stop effective enforcement…
It will be excessively difficult to create a body with the authority to act in such cases; the issues . . . are obviously politically loaded. But I think one can start along the careful lines referred to in the last paragraph of your comments, and it would indeed be a good thing if the Canadian delegation at the forthcoming Review Conference could move that way…”
In the last issue of Compliance Matters, we wrote about how the Reagan administration in 1985 tried to re-interpret the ABM Treaty so as to permit the deployment of the Strategic Defense Initiative (dubbed Star Wars) and we recounted Professor Harold Koh’s analysis of how the effort to reinterpret was defeated (to the great satisfaction of those who believe in the force of international law). When the son of Star Wars (National Missile Defense) first appeared on the scene, there was little talk about re-interpretation. It seemed that the US had learned its lesson as a result of its failed attempt during the Star Wars debate to gain acceptance of the concept of re-interpretation. Now, however, it seems like something suspiciously like re-interpretation is coming to the surface again. Dr. Sean Howard, writing in the June issue of Disarmament Diplomacy (p. 53), reports on recent developments:
On June 14, it was reported that lawyers advising President Clinton had reached a determination that the US could proceed with the construction of an NMD system without automatically violating the ABM Treaty. According to the reports, the gist of this interpretation seems to be that whereas completion or deployment of a new ABM system — most likely, a complex of radars and 100 missile-interceptors on Shemya Island in the western Aleutian islands of Alaska — would break the accord, beginning work on it — ‘pouring the concrete’ — would not constitute a breach, despite a legal understanding provided to the Soviet Union by the Reagan Administration that any work on a system not permitted by the Treaty would be considered a de jure as well as a de facto transgression. In fact, the details of the legal advice seem to point to a view that considerably more than ‘pouring concrete’ would be allowed before the violation-border was crossed; substantial construction would also be considered permissible. According to an unnamed Administration official: “Basically the Administration is working hard to free up as much wiggle room as it can before it has to make a decision. And that makes sense. There’s still a long way to go to come to an arrangement with the Russians.” Questioned as to how the Administration had been able to obtain this significantly new and more convenient legal advice, an unnamed Pentagon official told the New York Times: “Better lawyers.”
Editor’s Note: The definition of an “ABM system” in the ABM Treaty (Article II) is rather long, but it does mention a system that includes (inter alia) “ABM launchers… under construction.” Sean Howard advises that this story appeared in the New York Times on 15 June “Clinton Lawyers Give Go-Ahead To Missile Shield.”
The Special Economic Measures Act was enacted in 1992 (c. 17) to give the Governor-in-Council the authority to enact regulations imposing economic measures (including economic sanctions) upon a foreign state when Canada is called upon to do so by the United Nations or by another multinational body of which Canada is a member or in the event of a threat to international peace. Foreign Minister Axworthy has recently announced his interest in considering an extension to the act in order to cover sanctions and other measures that Canada might want to impose in future on a unilateral basis — unrelated to any international effort — and irrespective of the existence of a situation that could be termed a threat to international peace. He has indicated that such legislation might be necessary to deal with situations such as that currently unfolding in Sudan relating to the operations of the Canadian company Talisman Energy Inc.
Mr. Axworthy’s proposals are the subject of a recent Markland Group Paper by Michael Nash a lawyer practising in Hamilton. Despite the brevity of the paper, it is too long to be reproduced here. It is available on the Internet at www.hwcn.org/link/mkg/sema_paper.html. Alternatively, The Markland Group would be glad to forward a hard copy to anyone interested.
By Andrea Gede-Lange*
Editor’s Note:
In previous issues of Compliance Matters (Nos. 5, 6, 7 and 11), we reported on progress in the negotiations for a protocol to be added to the 1972 Biological and Toxin Weapons Convention (BWC). It will be recalled that the BWC contains no provisions aimed at securing compliance, and that negotiations among the States Parties towards securing an agreement on a protocol to rectify this omission have been underway since 1991. In order to be effective, the Markland Group views it as essential that the protocol contain strict provisions dealing with inspections. The inspection provisions contained in the Chemical Weapons Convention should be taken as a model. But it appears that certain countries are insisting on provisions that are considerably weaker, as outlined in the following progress report.
At the time of this writing (August 2000), the Ad Hoc Group of States Parties to the BWC is meeting for its twentieth session of negotiations on an effective Protocol to improve the implementation of the Convention. Prospects for the emergence of an efficient Protocol do not look promising. While most of the Western Group of States Parties favour an intrusive system of compliance measures, which most interpret as necessitating strong provisions for random visits, this majority does not always include the United States, Japan and Germany. To date, the US, in particular, has appeared to pursue a strategy aimed at reducing the impact of the Protocol on its biotechnology industry and its bio-defense infrastructure. Various states, including the US, are concerned not only about their bio-defense programs, but also about protecting their commercial proprietary information. In the case of the US, Henrietta Wilson, writing in a UK periodical, observes that the former concern is ironic given the level of openness about American defense programs. Moreover, Wilson points out, other states in the AHG and external observers believe that espionage in an international regime such as the BWC is minimal – far easier methods of uncovering state secrets exist than through an international inspectorate.[1]
On the topic of challenge investigations, the European states and most of the West (although not the US) favour a “red light” mechanism (a term used by some expert commentators), whereby an investigation could be stopped only if the Executive Council voted by a specific majority against it. Some non-aligned states and the US, on the other hand, fearing that misuse of the system could lead to frivolous or abusive inspections of their facilities, argue for the “green-light” procedure. By this mechanism, the challenge inspection would not proceed unless a majority of states voted explicitly in favour of undertaking the investigation.
Graham S. Pearson, former Chief Executive of Britain’s Chemical and Biological Defense Establishment, asserts that investigations are the ultimate compliance measure in the Protocol. Although some states fear abuse of investigation procedures, Pearson points out the existence of provisions to protect against such abuse already in the text of the draft Protocol, such as the Executive Council voting to stop an investigation (the “red-light” mechanism) or imposing penalties if it concludes that abuse has occurred.[2] Moreover, he argues experience with CWC indicates that abusive requests are not being made for challenge inspections and are unlikely to occur.[3] In fact, there have been no challenge investigations initiated to date under the CWC. A “green-light” mechanism, Pearson maintains, would make for a much weaker regime.
As the Fifth Review Conference approaches with the 2001 “deadline” mandated by the Fourth Review Conference in 1996, it is hoped that differences of opinion delaying negotiations can be resolved and talks concluded before the target date. The AHG has one more session scheduled for this year, 13-24 November, though it has reserved two alternate two-week sessions, 25 September-6 October and 27 November-8 December. The decision whether to use one of these alternate sessions is to be made during the present session. Unfortunately, the US remains one of the most powerful among those countries insisting on weaker inspections measures. With very little time left for other states to persuade the US to moderate its views, the end result may well be the emergence of an inadequate Protocol, and a BWC that lacks the strength to enforce its provisions.
[1] Henrietta Wilson, “Verification of the Biological Weapons Convention. Politics, Science and Industry, “ Trust and Verify, Issue 89, February 2000, p. 2.
[2] Graham S. Pearson, “The Protocol to the Biological Weapons Convention is Within Reach,” Arms Control Today, June 2000, p. 6. Available on the Web at www.armscontrol.org/ACT/june00/bwejun.htm.
[3] See the article on challenge inspections elsewhere in this issue.
* Sean Howard Ph.D. (University of Bradford) is the editor of Disarmament Diplomacy: www.acronym.org.uk. He lives in Louisbourg, Nova Scotia.
* Andrea Gede-Lange recently graduated from Mount Allison University with a first class honours degree in international relations. She is enrolled in McGill University Faculty of Law.