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. 16, December 2001

An abbreviated version of this newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 27, No. 4, Fall 2001. The expanded version that follows has been updated to 1 December 2001.

In this Issue:

I. Biological Weapons: US Proposals Are No Substitute For A Protocol by Sean Howard

II. OPCW Lacks Funds for Inspections by Douglas Scott

I. Biological Weapons: US Proposals Are No Substitute For A Protocol

By Sean Howard

Editorial Note

In the previous issue of Compliance Matters, Sean Howard commented on the collapse of the process aimed at agreeing on a compliance Protocol for the Biological Weapons Convention (BWC). Unlike most commentators, Howard did not ascribe the entire blame to the US. He reminded us that there were many key issues upon which important disagreements still existed. He also pointed to the promise of the US to bring forth proposals for a new approach to the whole problem of compliance – one that would presumably make the approach taken in the draft Protocol unnecessary. The US recently unveiled an outline of its approach and Sean Howard now offers his comments.

As reported in the last issue of Compliance Matters, on July 25 the United States pulled out of negotiations by the Ad Hoc Group (AHG), which had been attempting to conclude a draft Protocol for the BWC – one that would contain provisions for inspections and compliance. Negotiations had reached to the point where the AHG Chair, Ambassador Tibor Tóth of Hungary, had presented for discussion a complete draft protocol, which he entitled a “composite text.” The US was not alone in expressing reservations about important aspects of this text. Deep divisions remained in four areas; technology transfers and exports controls; inspection procedures; declaration requirements; and, perhaps the most basic issue of all, the mechanism for responding to allegations or evidence of non-compliance. Nonetheless, the US was alone in concluding that no protocol whatever could prove adequate. Instead, it promised to come up with an entirely new approach to the problem of biological weapons.

Faced with this abrupt change of position on the part of the US, the meetings of the AHG, as might be expected, ended in confusion. The plan had been to present an agreed draft protocol to the Review Conference which had been scheduled for November 19 to December 7. It was hoped that the Conference would endorse the draft and order it opened for signature. All that had to be abandoned – leaving much doubt as to exactly what the Review Conference could be expected to achieve.

In a dramatic statement on the opening day of the Review Conference, US Under Secretary of State John Bolton directly appealed for the entire Protocol process to be terminated. Bolton asked: “Will we be courageous, unflinching, and timely in our efforts to develop tools to deal with the threat as it exists today, or will we merely defer to slow-moving multilateral mechanisms that are oblivious to what is happening in the real world?” What was happening in that world, he argued, was that the al Qaeda terrorist network and a number of states had either acquired or were determined to develop a biological weapons capability in ways which a Protocol would be powerless to prevent. Bolton named three states parties (Iraq, North Korea and Iran), a signatory state (Syria), and one non-BWC party (Sudan), as proven or suspected BW proliferators, adding that he could have named others.

At a press conference on November 19, Mr. Bolton described the proposed Protocol as “hopelessly defective in three major respects”: it would “endanger the viability of biological warfare defence programmes”, compromise “export control programmes that the United States and many other Western countries have”, and “risk proprietary information” through “inspection provisions” interfering with “entirely legitimate pharmaceutical concerns.”

Instead of a Protocol, the US put forward its new approach. It would urge all states to:

· bolster national legislation dealing with biological weapons;

· strengthen law-enforcement procedures;

· rigorously monitor biotech activities; and

· cooperate with other states in sharing information and responding to incidents.

In addition, the President would like to see an international “code of ethical conduct” drawn up for bioscientists, and “an effective United Nations procedure” established allowing the Security Council to investigate “suspicious outbreaks or allegations of biological weapons use.”

The US is thus appealing to BWC States Parties not to revisit the issue of a verification protocol, whose basic feature would be the creation of a treaty administering body – the Organization for the Prohibition of Biological and Toxin Weapons (OPBW) – to act as the arbiter and monitor of compliance issues.

The general reaction to the US approach was one of scepticism. Many doubted that the goal of strengthening the regime could be achieved in the absence of a multilateral and legally binding verification and compliance mechanism. Without a mechanism that includes a body with responsibility for dealing with compliance problems, many states wonder whether the Convention will remain anything more than a hollow declaratory norm. They point to the lack of procedures to deal with issues of collective concern such as the use of biotechnology by developing countries for peaceful purposes, routine inspections of biotechnology facilities in all countries on a non-discriminatory basis, and impartial procedures for requesting, conducting and evaluating challenge inspections.

The US proposal would involve investing major investigatory and enforcement powers in the UN Security Council, thus granting the five permanent members the right to veto inspection requests. Such an arrangement may suit the US, but would remove the basic safeguards of collective security crucial to the credibility of a multilateral arms control regime. In contrast, with a compliance Protocol in place, the OPBW would operate on the basis of unambiguous procedures guiding the entire investigation process from the initiation of inspections (through either a ‘green light’, requiring the endorsement of the Executive Council, or a faster ‘red light’, allowing investigations to proceed unless blocked by the Executive Council) to the evaluation of results.

Such fundamental differences of approach will no doubt make the task of agreeing upon a meaningful Final Declaration at the Review Conference truly daunting. The US seems determined to use the Conference to confirm that the search for a Protocol, in John Bolton’s words, is “dead, and is not going to be resurrected.” The challenge may now be to put in place interim and provisional structures to guide the regime through this crisis period, without precluding further negotiations on ways to permanently enhance implementation and ensure compliance to the maximum degree possible.

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.

II. OPCW Lacks Funds for Inspections

by Douglas Scott

The Organization for the Prohibition of Chemical Weapons (OPCW) was established under the Chemical Weapons Convention (CWC) with a mandate to conduct inspections and deal with compliance problems. Its headquarters is located in a beautiful building in The Hague (newly constructed for the purpose) where it employs some 500 inspectors and technical staff. The expenses of the Organization (mostly for inspections) are required to be covered by contributions from the States Parties to the Convention, currently numbering 143.

For many months, the Director-General of the OPCW, José M. Bustani, has been warning that his funds are insufficient to cover the expenses of all the inspections that are required to be conducted under the terms of the Convention. The situation has deteriorated to the point where the Director-General has been compelled to seriously curtail the performance of inspections. In his report to the Executive Council of the OPCW on September 25, 2001, he observed,

Let me emphasize - we have not stopped inspections, in fact an industry DOC inspection - is under way as we speak. We are monitoring the cash situation daily, and as funds become available they will continue to be used, first and foremost, for inspection activities.[1]

The Director-General’s report goes on to give some disturbing details. Upon analysis, his figures indicate that, out of the total number of inspections scheduled in the budget for performance by the date of the report (25 September 2001), the number actually performed amounted to only 53%. In addition, many important programs have been curtailed, including those involving the training of personnel, the procurement of essential equipment and filling vacant posts.

A particularly disturbing example of inspections that have been cancelled relates to chemical weapon storage facilities (such as those located in Russia). The Convention is explicit in requiring continuous systematic verification of such facilities (by inspection or monitoring with on-site instruments) to ensure that no undetected removal of chemical weapons from such facilities takes place.[2] The report indicates that only 43% of the inspections in this category budgeted for performance by the report date had actually been performed.

Reasons for the Shortage

From reports issued by the OPCW, it is clear that there are three reasons why the Organization finds itself short of funds.[3] The first is the failure of the States Parties to the Convention to provide a budget with adequate funding. The second is the failure of many States Parties to pay their assessed contributions on time. The third is the failure of the States Parties and the parties possessing chemical weapons to agree on a method by which financing can be provided for the inspections taking place under articles IV and V of the Convention. These are the inspections that cover the process of destroying chemical weapons and chemical weapon production facilities. The Convention requires the possessor states to pay the cost of these inspections, but the Organization must incur the expense involved many months before it receives reimbursement.

The first of these reasons – the failure of the States Parties to provide an adequate budget – upon analysis, turns out to be the dominant reason, since it is at the root of the other two. There will always be a time-lag before reimbursement is received for the inspections under articles IV & V; and if the possessor states cannot be persuaded to supply bridge financing to compensate for the time-lag, the States Parties should include a sum for this purpose in the budget – rather than bridging the gap by curtailing inspections. Similarly, there should be a contingency item in the budget to cover the recurring failure of many States Parties to pay on time. Such an item should be accompanied by an item on the income side of the budget anticipating receipts from penalties for late payment.

The failure to provide an adequate budget raises an issue relating to the manner in which decisions are made by the OPCW – specifically decisions by its two policy-making bodies: the Executive Council, consisting of 41 States Parties, and the Conference of the States Parties (CSP), consisting of all 143 States Parties.

The last time a decision was taken on the budget was at the meeting of the CSP in May 2001 when the budget for 2002 was set. The figure agreed upon at that meeting was 61.9 million euros, which represented no net increase (after inflation) over the figure for the previous year. Since the budget for the previous year was responsible for today’s funding problems, the CSP decision ensured that they will be repeated in 2002. The Director General had asked for a substantially higher budget – one that would involve an increase of 24% over the previous year.[4] Since the meeting in May 2001, Mr. Bustani has not changed his position on the need for a higher budget; currently, he is discussing with the Executive Council the budget for 2003 and he is asking for a similar increase.[5]

Decision-Making in the OPCW

At the meeting in May, the Director General’s plea for a figure higher than 61.9 million euros seemed to be supported by the majority of the delegates[6] – despite the fact that this would have entailed higher assessed contributions. Many delegates expressed the view that the financial crisis was causing serious damage to the OPCW and was a threat to its future.[7] But it was clear at the meeting that several countries, including the US were opposed to any figure beyond 61.9. The countries favouring a higher figure, rather than calling for a vote, allowed the matter to be settled by consensus at the figure proposed by the US. [8] (It should be noted that article VIII of the Convention provides for decisions by the Executive Council and the CSP to be made by two-thirds majority vote where consensus cannot be achieved.)

This preference for making decisions by consensus is very much in accord with a tradition that has developed within the OPCW. (At meetings where the rule of consensus is being followed, decisions are made only when they can be adopted without objection.) In the four-year history of the Organization, there has rarely, if ever, been a case where a vote has been taken in either the CSP or the Executive Council.

There is no way of knowing whether those favouring a higher figure for the budget at the meeting in May constituted the two-thirds needed to out-vote the minority. Even so, given the importance of adequate funding, one would have thought that at least one delegation would have called for a vote. Yet, at OPCW meetings, it seems that the general opinion in favour of making decisions by consensus is always strong enough to prevent such a thing from happening.

The Consensus Approach to Decision-Making

There are two schools of thought on the wisdom of insisting on consensus when arriving at decisions. (The issue is the subject of an ongoing debate within the Markland Group.) There are those who argue that, where an international organization makes a decision of the type that is expected to be implemented, virtually all such decisions should be made by consensus, because otherwise there will likely be trouble with implementation. This school emphasizes that most international decision-making bodies make their decisions by consensus almost exclusively – often regardless of the fact that their mandate allows for decisions by a percentage vote.

Others argue that the situation is different in cases where the organization is responsible for administering a treaty. In that context, the organization is duty-bound to do all it can to ensure that the treaty is implemented. In the case of disarmament treaties, implementation needs to be verified through inspections; and inspections are impossible without adequate funding. It is therefore argued that decisions dealing with treaty implementation and funding problems should not be subject to blockage by a small minority – much less by a single State Party. Decisions on those matters should be taken by vote.

Such a principle is easier stated than applied – especially where the decision in question is one that is intended to provide adequate funding for inspections and where one of the parties responsible for blocking the decision supplies a large portion of the funding and harbours a large portion of the weapons required to be inspected. Thus, in the current funding crisis within the OPCW, it is no easy thing for the parties favouring increased funding to abandon consensus and exercise their right to call for a vote. They have to remember that one of the blocking parties, if outvoted, is in a position to retaliate and do considerable damage to the Convention. On the other hand, that damage must be weighed against the damage currently being done by allowing a single country to unilaterally control the implementation of the Convention to such an extent that it has succeeded in reducing inspection activities to an intolerable level.

Not an easy call for those favouring increased funding. But unless there are compelling factors that do not appear in the data available to the public, surely the time has come to insist on the Convention being implemented effectively in accordance with its terms – even if this means calling for a vote and subsequently dealing with a powerful disgruntled minority.

The budget fiasco surely indicates that the time has arrived to reconsider the wisdom of insisting on making all decisions by consensus. Indeed, with the tradition of deciding by consensus currently in full sway, one wonders whether there are instances where issues have been presented to the Executive Council or the CSP upon which decision is repeatedly blocked by a small minority with the result that the issue simply never gets decided. Research is needed on this point – specifically to discover whether and how often important issues have been presented to the Executive Council for decision on which the Council has failed to decide due to lack of consensus. One instance of the Council failing to decide is already known, because it relates to the budget for 2002. Article VIII.32 (a) of the Convention requires the Council to consider and submit to the [CSP] the draft program and budget of the Organization. After many attempts at a decision prior to the CSP meeting in May, the Council admitted failure and the matter was left to be dealt with by the CSP.[9] One wonders whether such failures are a common occurrence. If they are, it would indicate a serious weakness in the Organization’s modus operandi.

Insistence on consensus may be appropriate at the stage when countries are negotiating a treaty. But after the treaty has been adopted and has entered into force, decisions made within the treaty compliance regime should not be subject to blockage by a single State Party. Otherwise, a Party wanting to hide something could block inspections on its territory; and a Party in clear violation could block any decision relating to it.

The OPCW is the type of institution needed for disarmament treaties generally. It is the most advanced institution of its type and it is being used as a model for other treaty administering organizations. Institutions of the OPCW-type will always be a vital part of the global framework needed to maintain peace. The search for a workable modus operandi for such institutions obviously needs more attention.

1 December, 2001

Douglas Scott is a lawyer in Ancaster, Ontario. He is president of the Markland Group.

[1] Opening Statement by the Director-General to the Executive Council at its 26th session, September 2001, para. 1.

[2] CWC, Verification Annex, section IV-A, para. 41 & 42.

[3] Organization for the Prohibition for Chemical Weapons: Note by the Director-General: Financial Situation of the OPCW, 11 October 2001, S/273/2001

[4] “Developments in the OPCW – Quarterly Review No. 35”, CBW Conventions Bulletin No. 52 (June 2001),
pp. 6 & 10.

[6] Author’s conversation with Pamela Mills, a researcher with the Harvard-Sussex Program, who attended the meeting of the CSP in May 2001. Her information was gathered from conversations in the corridor, since the public was not admitted to the closed sessions where all the effective discussions occurred. Her assessment is supported by the following statement in the Director General’s “Closing Remarks to the Conference of the States Parties at its Sixth Session”, (19 May 2001): “Together with the vast majority of the delegates, I obviously cannot be satisfied with the overall level of funding for the year 2002.”

[7] A statement to this effect appears in the periodical Synthesis, published by the OPCW: June 2001, p. 36.

[8] “Developments in the OPCW – Quarterly Review No. 35”, CBW Conventions Bulletin No. 52 (June 2001),
pp. 6.

[9] “Developments in the OPCW – Quarterly Review No. 35”, CBW Conventions Bulletin No. 52 (June 2001),
pp. 6.