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. 20, June 2003

This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 29, No. 2, Summer 2003.

In this Issue:

I. Targeted Sanctions – The Report Of The Stockholm Process

II. Booknote: La Vérification de l’Élimination de l’Arme Chimique by Jocelyn Clerckx

III. Death Of Paul Szasz

I. Targeted Sanctions – The Report Of The Stockholm Process

Dated February 2003, the Report, presents the results of a year-long study by a committee of 123 experts from 35 countries drawn from academia, national governments, NGO's, intergovernmental organizations and the UN Secretariat. Financed by the government of Sweden, the participants met in a series of working groups and plenary meetings.

Entitled Making Targeted Sanctions Effective – Guidelines for the Implementation of UN Policy Options, the Report, edited by Peter Wallensteen, was published by the Department of Peace and Conflict Studies at Uppsalla University. It is available on the Internet at www.peace.uu.se.

The Stockholm Process was a continuation of two previous initiatives, the first of which was sponsored by the government of Switzerland in 1998 and 1999 under the name Interlaken Process which focused exclusively on financial sanctions. This was followed in December 2000 by the Bonn-Berlin Process sponsored by Germany, which studied arms embargos, aviation bans and travel bans. The results of these two initiatives were presented to the UN Security Council in two volumes in October 2001[1], at which time Sweden announced its intention to sponsor a third process, concentrating on the implementation aspects of targeted sanctions of all types.

Targeted sanctions are defined in the Report as those "directed against significant national decision-makers (political leaders and key supporters of particular regimes) and resources that are essential for their rule" (p. iii). The Report is comprised entirely of a series of detailed recommendations directed to members of the UN Security Council intended to improve the efficacy of future regimes involving targeted sanctions. Four types of sanctions are considered:

· financial sanctions – freezing assets held abroad

· travel sanctions – restricting travel by designated individuals

· aviation sanctions – restricting air travel generally

· arms embargo – focused on conventional weapons

The Report recommends the creation of expert panels to monitor compliance by member States and to offer them assistance in complying. Also recommended is greater precision on the part of the Security Council in defining what is required of member States. Another recommendation would have the Council appoint a UN sanctions coordinator who would be available to all the Sanctions Committee chairpersons[2].

Also, the Report recognizes the necessity of national legislation in the implementation of most types of targeted sanctions. It therefore recommends that the Security Council adopt a model law to guide member States in the enactment of their legislation. A detailed text of the model law is offered (with provisions for civil law countries that differ from those for common law countries)[3].

The Report makes no attempt to assess the efficacy of targeted sanctions assuming its recommendations were put in place. Also, it has very little to say about the success of past efforts to impose targeted sanctions. For instance, it gives none of the details of the aviation sanctions imposed on Libya from 1992 to 1999[4] - despite the fact that this particular sanctions effort was an obvious success[5].

Nor is there any mention of the travel ban that was imposed upon certain government officials in the last stages of the sanctions regime against Iraq. The episode was significant, because this was the last time the Security Council made any effort to penalize Iraq for its non-cooperation with inspections and it was followed by increasing obstruction of the inspections[6]. (Although authorized by the Security Council[7], the travel ban was never actually enforced, because the Iraqis appear to have persuaded their friends on the Security Council to block approval of the list of individuals that would be targeted).

Notwithstanding the absence of any assessment of the results that could be expected from carefully designed and monitored targeted sanctions, the Report should be of great value to busy diplomats when faced with the next call for targeted sanctions.

As with the two previous processes, the results of the Stockholm Process were presented to a closed meeting of the UN Security Council. The published report of that meeting[8] indicates that, although all the speakers expressed general approval of its recommendations, the Council took no formal action on the Process.

The following are excerpts from the statements made by the speakers at the meeting of the Council as reported in the UN Press Report issued following the meeting[9].

Carlos Pujalte, Mexico:

The recommendations of the Stockholm Process are particularly relevant to the work of the Council and its sanctions committees…the inclusion of a reporting requirement on sanctions violations into the mandates of peacekeeping operations should also be considered.

Alexander Konuzin, Russian Federation:

The study introduced today would be extremely useful in the United Nations. I hope its recommendations will be properly assessed by member States and of practical use to the Organization.

Mikhail Wehbe, Syria:

The Report of the Stockholm Process reflects the important aspects of evaluating targeted sanctions, as well as the necessary means for enhancing the United Nations’ role in their implementation. Also, financial support must be considered for the affected States, in order to increase their capacity to implement the sanctions.

Martin Belinga Eboutou of Cameroon was the only speaker to mention the work of the ongoing Security Council working group looking for ways to strengthen sanctions[10]:

The working group on general issues relating to sanctions could make good use of the ideas put forth in the report in achieving its goals…. Established in 2000, the group was entrusted with drawing up general recommendations regarding strengthening the effectiveness of sanctions imposed by the United Nations. Its work deals with the administration of sanctions…. Despite the progress made differences of opinion remain, hampering the conclusion of its work and the management of the sanctions regimes. Those differences deal primarily with the scope and length of sanctions. I hope that those two questions will receive due attention from the Council and civil society.

Jeremy Greenstock, United Kingdom:

The Stockholm Process moves to the next stage of sanctions design, that of better implementation. There is no point in adoption sanctions if the Council fails to enforce them. The United Kingdom and France have put forward a proposal for a monitoring mechanism, and are looking at how to adapt that idea to complement the recommendations of Stockholm. In doing so, we are looking to exploit the synergies among the different panels and avoid overlap among monitors. Improved coordination and follow-up are needed to make that work.

Richard Williamson, United States:

The Council’s imposition of sanctions offers an approach greater than persuasion, but less than the use of force to bring about desired behaviour. Sanctions should be tied directly to the described change the Council wished to see in an actor, rather than artificially linked to an arbitrary time limit.

Danilo Türk, Assistant Secretary-General for Political Affairs:

The Secretariat will remain engaged in the Stockholm process…I would welcome any additional resources to make strengthening this capacity of the Secretariat a reality.

II. Booknote

An important study of the Chemical Weapons Convention has recently come to our attention:

Jocelyn Clerckx, La vérification de l'élimination de l'arme chimique – essai d'analyse et d'évaluation de la Convention de Paris du 13 janvier 1993, Paris, Librairie générale de droit et de jurisprudence, 2001, 307 pp. ISBN 2.275.02047.0

The book offers a valuable summary, analysis and commentary mainly focused on the transparency obligations under the Chemical Weapons Convention. In the preface, Raymond Goy professeur émérite de l'Université de Rouen, alludes to the broad perspective taken by the author: Il explique le droit par tout un constat extrajuridique; il discute, interprète, critique ce droit; il propose, outre diverses interprétations, un système de règlement juridictionnel; mais surtout, il compare, et évalue les comparaisons entre divers modes de vérification en droit du désarmement.

The first two parts are largely analytical, whereas the third compares the powers of the OPCW with those of the IAEA and concludes that there is an important disparité de fonction between these two organizations. Professor Clerckx is particularly interesting in his treatment of the inspectors' rights of access (pages 116 to 138), a topic on which there are some unresolved disputes currently confronting the Executive Council of the OPCW.

Jocelyn Clerckx holds the degree of docteur en droit from l'Université de Rouen. Currently, he is lecturing at l'Université du Havre with the position of maître de conférences en droit publique.

The book is fully annotated with an extensive bibliography, lacking only an index. There are no plans currently to publish an English translation. It is available in Canada through Librairie Champlain, Toronto, www.librairiechamplain.com. Approximately $110 (delivery six to eight weeks).

III. Death Of Paul Szasz

It is with much regret that we learned recently of the death of Paul Szasz, a valued member of the Markland Group's Committee of Occasional Consultants. Professor Szasz was for many years until 1966 the Legal and Safeguards Officer at the IAEA, after which he held various posts culminating in his position as Principal Legal Officer and Deputy to the Legal Counsel at the United Nations in New York. At various times, he was an adjunct professor or visiting fellow at several universities, including the New York University School of Law.

He was a valued consultant to the Markland Group, especially in matters relating to the need to strengthen the enforcement provisions of the NPT and the IAEA (a topic that seems likely to receive renewed attention in the coming months).

Paul Szasz died on 30 April 2003. A detailed tribute can be seen in Cornell International Law Journal, Vol. 35, No. 3×

[1] Security Council documents S/7183 and S/7187

[5] For an assessment of the efficacy of targeted sanctions imposed by the Security Council up to the end of 2001, see David Cortright and George A. Lopez (eds): Smart Sanctions: Targeting Economic Statecraft (Lanham, MD.: Rowman and Littlefield, 2002). For a history and accounting of UN sanctions in general in the 1900’s, see David Cortright and George A. Lopez Sanctions and the Search for Security: Challenges for UN Action (Boulder, CO.: Lynne Reinner, 2002)

[6] Richard Butler, The Greatest Threat (New York, Public Affairs, 2000) pp. 153 to 221

[10] For information on the work of this group, see Compliance Matters, issue numbers 7 and 8