COMPLIANCE MATTERS

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

The newsletter of the Markland Group

Issue No. 15, September 2001

This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 27, No. 3, Summer 2001. The version that follows has been slightly edited since it first appeared in the Bulletin.

In this Issue:

I. Improving U.N. Sanctions – Security Council Debates Time Limits for Future Sanctions

II. Problems With Transparency and Confidentiality Under the CWC

III. Search for BWC Protocol Collapses

I. Improving U.N. Sanctions –
Security Council Debates Time Limits for Future Sanctions

By Douglas Scott*

The following is one of a series of reports by the Markland Group on efforts to improve U.N. sanctions. Previous reports can be seen in our newsletter, Compliance Matters, issues 8 and 9.

At the instigation of Canada (during its term as president of the Security Council in 2000), the Security Council established a Working Group on General Issues on Sanctions. The Group was mandated to “examine, inter alia… [the] design of sanctions [generally] including the conditions for the maintaining/lifting of sanctions…”. One of the proposals discussed by the Working Group would have the Group recommend to the Security Council that “sanctions be imposed for limited periods of time taking all factors into account, and renewed by decision of the Security Council…”

Until recently, no Council resolution establishing a sanction regime contained a time period during which the sanctions would operate. Accordingly, once a sanction regime was established, any move to terminate it could be vetoed by any member of the P-5. Because of the veto therefore, while it was always difficult to establish a sanction regime, once established, it was even more difficult to get rid of it. This situation has given rise to numerous objections.

The proposal quoted above was intended to rectify this problem. It was one of several proposals contained in a draft report prepared by the chairman of the Working Group for consideration by its members. Although not officially released, a document purporting to be a copy of the draft report, prepared by the Group’s chairman, Ambassador Chowdhury, has appeared on the Internet (www.cam.uk/societies/casi/info/scwgs140201.html). As of this writing, the draft report has failed to achieve consensus among the members of the Group.

The Working Group was comprised of all the sitting members of the Security Council. It was established pursuant to a “President’s Note” (S/2000/319) on 17 April 2000, as a result of the initiative of Canada’s ambassador Robert Fowler in his role president of the Security Council. The group was created “on a temporary basis” and was mandated to present its report on 30 November 2000. This date was extended to December 2000 and subsequently it was extended indefinitely.

In our discussions with persons acquainted with the work of the Working Group, one of the reasons suggested for the failure of the draft report was the reference to time limits. This conclusion needs to be matched against the Security Council’s recently adopted practice of attaching time limits to its resolutions on sanctions.

The first time this occurred was in May 2000 when the Council adopted resolution 1298, which imposed an arms embargo on Eritrea and Ethiopia. Specifically, the resolution provided that the sanctions “are established for twelve months and that, at the end of that period, the Council will decide whether the governments of Eritrea and Ethiopia have complied with paragraphs 2, 3 and 4 above, and, accordingly, whether to extend these measures for a further period with these same conditions”. Similar time limits have appeared in three subsequent resolutions (including Resolution 1333 adopted in December 2000 which imposed sanctions on the Taliban). These four resolutions represent all the new sanction regimes established by the Security Council since May 2000 and they all contain time limits.

The Council has thus made it clear that it is not opposed to time limits in principle. Accordingly, to say (as was suggested above) that the reason for the rejection of Chowdhury draft was its reference to time limits needs to be nuanced. The Council has demonstrated that it is prepared to accept a time limit if the occasion for it arises, but it is apparently not prepared to accept a resolution that would place a restraint on its freedom to decide such issues.

On the other hand, the language used in the four resolutions referred to indicates that the Council, in addition to putting in place a limited-term sanction regime, also stipulated that, upon its expiry, any subsequent sanction adopted must itself be limited to “a further period with the same conditions”. This certainly looks like a restraint on the Council’s freedom to decide, although not as sweeping as that contemplated by the Chowdhury draft.

II. Problems With Transparency and Confidentiality Under the CWC

By Penelope Simons*

With its highly intrusive verification provisions and state-of-the-art confidentiality regime, the Chemical Weapons Convention (CWC) is showing signs of strain in its fourth year since entry into force. According to Jonathan Tucker of the Center for Nonproliferation Studies at the Monterey Institute of International Studies, the delicate balance struck by negotiators between transparency and confidentiality is being tipped in favour of the protection of confidential information “with the unfortunate result of eroding the intrusiveness of the CWC verification regime”.[1]

The Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) has reported that during some routine inspections of Schedule 1 facilities, the access of inspectors has been restricted. [2] He has also voiced his concern that some States Parties have adopted narrow interpretations of the CWC’s declaration requirements in order to protect certain industrial facilities from making declarations and from undergoing routine inspections. The Director-General has referred to the above practice as protectionism saying that it creates an uneven playing field within the chemical industry and allows for the possibility of large amounts of scheduled chemicals to go unreported.[3]

This apparent concern on the part of States Parties for the loss of confidential information does not always appear to be coming from the chemical industry. Indeed, Frederick Webber, President and CEO of the American Chemistry Council stated in November 2000 that the US Chemical Industry has “been very encouraged by the demonstrated effectiveness of protection for confidential business information implemented under the CWC”.[4]

Also, it is unlikely that the measures taken by States Parties such as those referred to above are always indicative of a genuine concern for the loss of sensitive information. Often, it would appear that States Parties are interpreting confidentiality provisions in such a way as to reduce the intrusiveness and the nuisance involved in the Convention’s verification regime. In the same vein, States Parties appear to be “abusing” the confidentiality provisions in order to prevent the release even of non-confidential information to the public. According to the Director-General, this is done in most cases for “reasons of political convenience”.[5] For example, an expert observer from the Stimson Center has noted that the U.S. did not give the Technical Secretariat consent to be named in an early OPCW press release as a chemical weapons possessor even though it was already a matter of public record. It was also noted that India refused consent to be named as a possessor even though it had issued its own press release stating as much.[6]

III. Search for BWC Protocol Collapses

By Sean Howard*

Efforts to elaborate a sorely needed verification and compliance regime for the Biological Weapons Convention (BWC) have collapsed in disarray. Since January 1995, an Ad Hoc Group (AHG) of States Parties to the Convention has been meeting in Geneva, charged with preparing a compliance Protocol for submission to the Fifth BWC Review Conference, scheduled for November 19-December 7 this year. By the opening of the AHG’s 24th and final session, delegations were set to consider a compromise ‘composite text’, introduced by the Chair, Ambassador Tibor Tóth of Hungary. Before negotiations could resume, however, the United States announced its withdrawal from discussions. Addressing delegates on July 25, Ambassador Donald Mahley declared that the US’s objections ran deeper than specific flaws in the composite text, extending to the very concept of reaching agreement on any Protocol. Rather than offering delegates alternative textual suggestions, the US is promised a new approach to the issue. Faced with this stark position, the AHG soon decided it could not proceed with discussions on a text. The remainder of its session was taken up with efforts to draft a report for the Fifth Review Conference. In the early hours of August 18, the attempt was abandoned, bedevilled by the insistence of some states that the US be singled out for blame, and the refusal of the US to accept any description of developments at the 24th session.

It would be wrong to give the impression that the United States dashed agreement from the grasp of the AHG. Major differences remained to be bridged, unlikely to be satisfied by the composite text. When should the Protocol enter into force? Should the agreement encourage technology transfers and lead to an overhaul of existing export control arrangements? Under what circumstances should inspections be initiated, and what should be their extent and duration? How should States Parties respond to cases of alleged or exposed non-compliance? Nor should US concerns be dismissed as groundless. Might not the Protocol, as Mahley warned, degenerate into a “trade treaty”, used by some states as a mechanism for gaining long-denied access to advanced biotechnology? Might not inadequate inspection procedures lend a sense of false assurance to the regime? There was, indeed, a lack of consensus in the AHG on any of these issues. What disturbs all other participants, however, is Washington’s ‘double-rejection’, of process in addition to product. Without a continued commitment to multilateralism, many are asking, what hope remains for effectively revisiting the issue? Attempts to get the process back on track before or during the Review Conference will certainly pose a stern test of political will.

[1] Jonathan Tucker, ”The Chemical Weapons Convention: Has it Enhanced U.S. Security?” Arms Control Today, April, 2001, p. 8

[2] Opening Statement by the Director-General to the Executive Council at its Twenty-Fourth Session, The Hague, 3 April, 2001, para. 14. Available online: http://www.opcw.nl/speeches/DG_statement_to_24^th_EC.htm

[3] Opening Statement by the Director-General to the Conference of State Parties at its Sixth Session, The Hague, 14 May, 2001, para. 31. Available online: http://www.opcw.nl/speeches/DG_statement_CSP_VI.htm.

[4] Frederick L. Webber, “A US Industry Perspective on the Implementation of the Chemical Weapons Convention”, OPCW Synthesis, November 2000, p.16.

[5] Opening Statement by the Director-General to the Conference of State Parties at its Sixth Session, The Hague, 14 May 2001, para.54. Available online: http://www.opcw.nl/speeches/DG_statement_CSP_VI.htm. Amy Smithson reports that the U.S. did not give Technical Secretariat consent to be named as a chemical weapons possessor in an early OPCW press release even though it was already a matter of public record and that India also refused consent to be named as a possessor even though it issued its own press release stating as much. See Amy E. Smithson, “Rudderless: The Chemical Weapons Convention at 1 1/2”, Report No. 25, (Washington, D.C.: The Henry L. Stimson Center, September 1998), p. 41-2. Available online: http://www.stimpson.org pubs/allpubs.htm.

[6] See Amy E. Smithson, “Rudderless: The Chemical Weapons Convention at 1 ½”, Report No. 25, (Washington, D.C.: The Henry L. Stimson Center, September 1998), p. 41-2. Available online: http://www.stimson.org pubs/allpubs.htm.