[Return to Back Issues of Our Newsletter]
Recent developments relating to compliance
with multilateral treaties in the
area of disarmament and international security.
The newsletter of the Markland Group
Issue No. 14, April 2001
This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 27, No. 2, Spring 2001. The version that follows has been edited and extended since it first appeared in the Bulletin.
I. Article Review –
Müller, Treaty Enforcement
II. Bold Attempt to
Focus the BWC Protocol Discussions
III. Compliance With the
Requirements of the CWC for the Enactment of National Legislation
Harald
Müller, Compliance Politics: A Critical
Analysis of Multilateral Arms Control Treaty Enforcement, (The
Non-Proliferation Review, Summer 2000, p. 77).
Reviewed by Douglas Scott*
Slowly but surely, the academic community is turning its attention to the problem of how a disarmament treaty should be enforced once a violation has been detected. Much has been written on the subject of verification, mainly focussing on treaty provisions requiring inspection and other arrangements to permit transparency. The rationale for these provisions is the expectation that any would-be violator would be deterred by the prospect of being detected. But in cases where the fear of detection does not succeed in deterring the violator, the international community is faced with the problem of enforcement. Since military measures are almost always impractical or ineffective, other methods must be considered. If possible, they should be institutionalized and made part of every disarmament treaty. It is this aspect of compliance methodology that has received too little attention among the expert community and the academic community.
It is a pleasure therefore to welcome Dr. Müller’s article on treaty enforcement. Harald Müller is the Director of The Peace Research Institute – Frankfurt and professor of International Relations at Goethe in Frankfurt.
The prime focus of his article is on the manner in which the US has been dealing with compliance problems under multilateral treaties – primarily arms control and disarmament treaties. He explains that it is not his purpose in the article
…to engage in a nice academic debate about institutional reform, starting with the UN Security Council and going into detail through the weaknesses of each and every international organization charged with treaty administration…
He goes on to reassure us however that
… This does not mean that institutional design is not a worthy venture: it certainly is.
He insists that the aspect of the problem that needs priority attention is the behaviour of the actors, “especially the leading ones”. He faults the US, Russia and China for adopting a unilateralist approach, instead of providing leadership through a policy involving “cooperative and persuasive approaches… within the treaty community.”
The article is long on theory (intended to demonstrate the importance of this type of leadership), but it is short on examples. It makes only passing reference to two serious cases involving a determined and deliberate effort to violate a disarmament treaty: North Korea and Iraq, both of which called for leadership in treaty enforcement measures. In the Iraq case, the author quite rightly faults the US for using UNSCOM “for its own intelligence gathering”, but omits any comment on the US/UK bombing of Baghdad in December 1998.
Yet that particular incident was possibly the most important recent example of US unilateralist behaviour. When it decided to launch Desert Fox, the US ignored the fact that it was a member of the UN Security Council which was then engaged in a program to bring a violator into compliance. It then proceeded (with UK support) to put into action a scheme of its own to solve the problem – without regard to the harm that could be done to the Council’s program in the event that it failed. No doubt, the US thought it would be more successful than the Council was in persuading Iraq to give free access to the inspectors. In the result, Desert Fox was worse than a failure. It not only failed to win access for the inspectors; it left them totally excluded from Iraqi territory and it crippled the Council’s bargaining position with Iraq.
This view of Desert Fox is markedly different from the reaction of most of the English-language media. One reason the media ignored this aspect of the event was that they were more interested in pointing up the Monica Lewinski scandal which was then swirling about President Clinton. The media were quite right to suggest that the real reason for the attack on Baghdad was very likely part of an effort to divert the mind of the public from the scandal. But having made that abundantly clear, the media then forgot to explain how the escapade gravely injured the Security Council.
It seems that the media, when dealing with events where the Security Council is involved and especially when the Council is faced with a challenge to its authority, often forget to analyse the situation from the point of view of the Council and its efforts to use its authority to preserve peace. The problem is particularly acute in cases where, as with Iraq and North Korea, the Council is trying to enforce a disarmament treaty against a determined and deliberate violator.
The media would be less likely to ignore the travails of the Security Council if there were more experts and academics interested in compliance methodology and available for consultation and comment on issues such as these.
Despite omitting the example of Desert Fox, Dr. Müller makes us fully aware of the fact that US leadership in these areas is often counter-productive.
As a contribution to the study of compliance methodology, the value of Professor Müller’s article lies not only in pointing up the weaknesses of current methods employed for dealing with a compliance problem; even more important, unlike many other commentators, he ventures to recommend an alternative approach. He begins by warning that there is no way of avoiding US involvement in activities aimed at dealing with compliance problems. He then argues that a share of the responsibility should be assumed by other groupings – preferably those with sufficient weight to be listened to in Washington. An obvious candidate, he suggests, would be the European Union – provided it is able to “shape a common security policy”.
In addition or in the alternative, he mentions the New Agenda Coalition (NAC), citing its success at the 2000 NPT Review Conference. This group (consisting of Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa and Sweden) is given much of the credit for preventing Conference from failing and persuading it to agree on a highly useful Final Document.
He appears to be suggesting that, for compliance problems where the UN is involved, there should be a group of countries specifically committed to helping the Security Council in its efforts to promote and enforce compliance. This is a worthy suggestion. An elaboration of his proposal would be welcome.
The need for such a group arises from a number of factors, not the least of which is the way the media often treat the Security Council. The issues dealt with by the Council are often highly complex and it is only to be expected that the media will often misunderstand them or ignore them as happened in the case of Desert Fox. A group of countries with membership such as that of the New Agenda Coalition could do much to explain to the media the policies and objectives adopted by the Council in particular situations.
In the case of Iraq, as long as Council is going to continue with its oil sanction policy – which is a confusing and complex policy – the Council sorely needs the strong voice of such a group to support it. Such a role would fit well with the role that Dr. Müller seems to envision for his “other groupings”, according to which they would use their influence to persuade the US and other P-5 members to deal with compliance problems cooperatively through the Council rather than unilaterally. Had there been such a group in operation prior to Desert Fox, it might have avoided that calamity and saved the Council from its current embarrassing and powerless position.
A another critique of US multilateralism appeared in an article entitled “Goodbye UNSCOM: A Sorry Tale in UN-US Relations” by David M. Malone, a former Canadian diplomat now directing the International Peace Academy in New York. After chronicling the highlights of UNSCOM’s story up to the date of writing (August 1999), Malone’s paper predicts the demise of UNSCOM, which he ascribes to Washington’s blundering unilateralism, exemplified inter alia by seemingly misguided attacks on the Secretary General Kofi Annan.
Malone’s paper seems to have been prophetic. Shortly after it was written, UNSCOM disappeared, and a year later, a new US administration came to power bringing a new interest in multilateralism. Instead of the old unilateral militaralism, we are seeing the US trying to work through the UN and attempting to build support for its policies among the members of the Security Council and the Arab countries.
For all its astute analysis and insight, however, the Malone paper is short on suggestions aimed at solving the Iraq problem. Apart from recommending a minor change in Kofi Annan’s modus operandi, there is nothing as bold as Professor Müller’s proposal for a group of supportive states to work with the US and other members of the Security Council in an effort to steer the US towards a more multilateralist course.
The formation of such a group could be of immediate use in the case of Iraq. Canada should consider becoming involved – possibly taking a leadership role.
By Sean Howard*
Editor’s Note
Shortly after this item appeared in the CCIL Bulletin, the AHG session referred to herein took place. A report on its results can be seen in Disarmament Diplomacy, Issue No. 56. (www.acronym.org.uk/dddesc.htm)
Efforts to negotiate a verification protocol to the Biological and Toxin Weapons Convention (BWC) are reaching a critical stage. The Ad Hoc Group (AHG) of states parties responsible for negotiating the protocol, which has been meeting periodically in Geneva since January 1995, is seeking agreement on a final text for submission to the Fifth Review Conference of the BWC, scheduled for November 19-December 7 this year. After the AHG’s twenty-second session of talks (February 12-23), it was clear that the ‘rolling text’ under consideration was incapable of conversion into a clean draft. Burdened with around 1,400 square brackets, the rolling text incorporated divergent visions of key components of the protocol, including the question of technology transfers and export controls, the formula for entry-into-force, procedures for initiating and conducting inspections, the scope of required declarations, and, most importantly, responses to alleged or proven non-compliance.
Faced with this spectrum of deep differences, and with only two sessions of talks scheduled before the Review Conference, the chair of the AHG, Ambassador Tibor Tóth of Hungary, has taken a calculated gamble by introducing a “composite text”, in effect a compilation of articles and provisions which he believes likely to constitute the most satisfactory basis for agreement. Tóth made his text – based on his ‘building block’ proposals, introduced in recent sessions – available to delegations on March 30, expressing the hope that it would “bring clarity to the outstanding questions.” The text has not been made publicly available.
When the AHG opened its twenty-third and penultimate session (April 23-May 11), reaction to the composite was mixed, suggesting an uphill struggle in the seven remaining weeks of talks. On the question of the status of the composite text, states were divided between those – led by European Union countries, Australia, Brazil, Japan and South Africa – which welcomed it as a new basis for negotiations, and those – led by China, Iran and Pakistan – which insisted on the continued primacy of the rolling text, presumably because it contained some square-bracketed passages omitted in Ambassador Tóth’s version. A number of states, including the US, remained non-committal. Interestingly, almost all states expressed dissatisfaction with elements of the text, a fact which may at least serve to confirm the impartiality of the chair’s intervention. As Tóth frankly admitted, the tactical objective of his move was to make “all delegations unhappy”, and thus equally interested in discussion and compromise. If there was any room for doubt before, it is now clear that the moment of truth for the negotiations has arrived.
By Douglas Scott
The Chemical Weapons Convention was the first disarmament treaty to include a provision that called for the enactment by each State Party of legislation requiring its citizens to comply with the treaty and penalizing them for violations. Article VII provides that
each State Party… shall prohibit natural and legal persons anywhere on its territory… from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.
Although there are no time limits, information about legislation enacted and measures taken by States Parties must be given to the organization that administers the Convention in The Hague (The Organization for the Prohibition of Chemical Weapons – OPCW).
The following are some of the matters that might be expected to be covered in such legislation:
· provisions making it an offence for natural and legal persons to produce certain chemical substances or to assist others in that respect;
· provisions requiring the owners and operators of chemical manufacturing facilities to provide the information required to be supplied to the OPCW;
· provisions requiring the owners and operators to open their plants to OPCW inspectors when required under the Convention;
· provisions governing the export and import of certain chemical substances;
· provisions prescribing rules as to the handling of confidential information received by States Parties from the OPCW and prescribing penalties for breach.
It appears that the OPCW is having difficulty in persuading many States Parties to enact the necessary legislation and regulations. We contacted the Office of the Legal Advisor to the OPCW in The Hague for details. We were informed that 53 out of the 143 States Parties to the Convention (37%) have notified the OPCW of the legislative measures in force to implement the Convention.
We asked for information as to the nature of the difficulties being encountered by OPCW. We also asked whether the Office of the Legal Advisor had a system for scrutinizing the legislation in order to determine whether it was sufficient to comply with the requirements of Article VII. The response received included the following comments:
· The Secretariat has no mandate to determine whether or not national legislation is sufficient and such a mandate would in any event not be possible.
· The State’s particular legal system will determine the extent to which implementing legislation is necessary. In some states, the scope of pre-existing legislation already provided most of the regulation necessary to implement the Convention. …in such cases, only the State has the full picture of which parts of the Convention are covered under various pieces of legislation.
· Another factor is the language consideration: in many cases, the Secretariat is looking at translation of legislation – depending on the quality of the translation, the Secretariat may not have a complete appreciation of the full force and effect of the legislative provisions.
Despite this denial of involvement in scrutinizing legislation, the Legal Advisor informed us that the Secretariat has compiled and published a topical survey of national implementing legislation so that States Parties and the Secretariat may themselves become aware of the provisions in place in various jurisdictions.
We were also informed that the Secretariat had developed a program of legal technical assistance to offer States parties upon request, which includes
· regional seminars and workshops devoted to legislative issues;
· documentary assistance consisting of a “legislative package” which includes a series of Secretariat notes on legislative issues, check lists and model legislation;
· bilateral assistance: written comments from the Legal Advisor on draft legislation provided upon request.
An international symposium on a somewhat broader topic was held recently in The Hague under the auspices of the OPCW in February 2001 under the title “International Symposium on Cooperation and Legal Assistance for the Effective Implementation of International Agreements.” In addition to the topics indicated in the title, the symposium discussed national implementing legislation and “the actual situations that are faced in the field in trying to prosecute offenders in an international context.”
*Douglas Scott is the
president of the Markland Group.
* Sean Howard Ph. D (University
of Bradford) is the editor of Disarmament
Diplomacy (www.acronym.org.uk) and Adjunct
Professor in the Department of Politics, Government and Public Administration
at the University College of Cape Breton. He lives in Louisbourg, Nova Scotia.