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. 21, October 2003

This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 29, No. 3, Autumn 2003.

In this Issue:

I. The Judgment in Bustani v. OPCW

II. The BWC After the Collapse of the Protocol Process: The First Meeting of Experts

I. The Judgment in Bustani v. OPCW

By Douglas Scott*

José Bustani, after being removed as Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) on 22 April 2002, launched an action against his former employer claiming damages for unjust dismissal. (The OPCW was created by the States Parties to the Chemical Weapons Convention (CWC) for the purpose of ensuring its implementation.)

The Bustani case was heard by the Administrative Tribunal of the International Labour Organisation (ILO). Judgment was rendered on 16 July 2003 awarding Mr. Bustani substantial damages[1]. The Tribunal ruled that Mr. Bustani was entitled to his full salary from the date of his dismissal to the end of his term, a period of slightly over three years. In addition, he was awarded 50,000 euros in "moral damages" (which he had previously indicated would be given to the OPCW to fund one of its under funded projects). His claim for costs was granted in the amount of 5,000 euros.

The Tribunal first determined that it had jurisdiction to deal with the complaint by virtue of certain clauses in the OPCW Staff Regulations (11.1 and 11.3) and Article II.5 of the Tribunal's Statute. It then proceeded to overrule the complainant's objection to the procedure by which the Conference of the States Parties had been convened to consider the question of termination. On the merits, the key parts of the Judgment are as follows:

In accordance with the established case law of all international administrative tribunals, the Tribunal reaffirms that the independence of international civil servants is an essential guarantee, not only for the civil servants themselves, but also for the proper functioning of international organizations. In the case of heads of organizations, that independence is protected, inter alia, by the fact that they are appointed for a limited term of office. To concede that the authority in which the power of appointment is vested – in this case the Conference of the States Parties of the Organisation – may terminate that appointment in its unfettered discretion, would constitute an unacceptable violation of the principles on which international organisations' activities are founded (and which are in fact recalled in Article VIII of the Convention, in paragraphs 46 and 47), by rendering officials vulnerable to pressures and to political change.

The possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded, but such a measure, being punitive in nature, could only be taken in full compliance with the principle of due process, following a procedure enabling the individual concerned to defend his or her case effectively before an independent and impartial body. In this instance, the complainant had no procedural guarantee, and given the circumstances of his case, he has good grounds for asserting that the premature termination of his appointment violated the terms of his contract of employment and contravened the general principles of the law of the international civil service.

What the Judgment Stands For

It would appear that the States Parties to the CWC should conclude that, in the case of future difficulties with a Director-General, the following rules would apply:

1. In a proper case, the Conference has authority to terminate the appointment of a Director-General and it would appear that that authority can be exercised in the absence of a recommendation by the Executive Council.

2. However, a simple vote of non-confidence by the Conference based on a belief that the Director-General's conduct and management pose a threat to the Organisation is not sufficient grounds for terminating an appointment before its expiry.

3. The principle of independence for international civil servants applies to the Director-General. Its application in the case of the OPCW dictates that:

(a) the Conference does not have unfettered discretion to terminate the appointment of a Director-General;

(b) the Conference may terminate the appointment only on grounds of grave misconduct.

4. The procedure adopted for establishing a case of grave misconduct against a Director-General must fully comply with the principle of due process and afford him or her an opportunity to present a defence effectively before an independent and impartial body.

5. Any resolution adopted by the Conference to terminate an appointment must refer to the grave misconduct upon which it is based.

6. In order to deal with cases where a Director-General is faced with proceedings to terminate his/her appointment on the grounds of grave misconduct, the Judgment appears to suggest that the Staff Rules of the Organization should be altered to make provision for his or her case to be examined by an impartial judicial body.

The Tribunal did not offer any guidance as to the type of behaviour that would constitute grave misconduct of a degree sufficient to justify termination. Presumably, it did not consider it necessary to enter upon this matter in view of the fact that it had already determined that the termination was wrongful (because the requirements for due process had not been met and the Conference's resolution was not properly framed).

In addition to awarding damages, the Tribunal's decision includes the following clause:

The decision taken by the Conference of the States Parties of the OPCW on 22 April 2002 is set aside.

This part of the Judgment leaves matters in some confusion. It is possible to interpret these words as meaning that the Conference decision should be regarded as a nullity. According to this interpretation, Mr. Bustani should be regarded as never having been terminated. This would call into question the legal status of the person appointed to replace him.

The OPCW should not allow this state of confusion to remain unresolved, for to do so would indicate that the Organisation was simply ignoring the Judgment. Two avenues should be explored towards resolving the confusion. The Organisation could apply to the Tribunal for an order clarifying this aspect of the Judgment. An alternative approach would be an application to the International Court of Justice for an advisory opinion pursuant to Article XIV.5 of the Convention. It should not be too difficult to persuade the Tribunal or the Court that this part of the Judgment should not be taken as affecting the legal fact of the termination nor the validity of the appointment of the present incumbent. This point becomes especially clear when it is recalled that the Judgment notes that Mr. Bustani did not ask to be reinstated as Director-General.

The Role of the US

The process for dismissal started when the US alternate permanent representative to the OPCW visited Mr. Bustani a few days before 21 February 2002 and laid out a series of complaints and asked for his resignation[2]. When this was refused, the US called for a meeting of the Executive Council and circulated a nine-page non-paper on 6 March with a list of its complaints. The list was organized under three headings:

· Polarizing and confrontational conduct

· Management issues

· Advocacy of inappropriate roles for the OPCW

This list loses much of its impact when it is remembered that many of the items listed above were based on Mr. Bustani’s refusal to take certain specific actions and when it is remembered that the US was always free to ask the Executive Council to order him to take such actions, in which case he would have been required to comply. It seems possible that the US had already tried and failed to persuade the Executive Council to issue such orders and was now trying to achieve its purpose by replacing the Director-General.

On 21 March 2002, the US tabled a resolution in the Executive Council expressing no confidence in Mr. Bustani and requesting his resignation. The motion was defeated. The US then called for a special meeting of the Conference of the States Parties and began a campaign among all 145 States Parties to support a motion for dismissal. The meeting took place on 21-22 April. Most of the western group including Canada supported the US motion to dismiss, as a result of which it passed with the required two-thirds majority. Subsequently, on 25 July 2002 a new Director-General was appointed in the person of Roger Pfirter, an experienced diplomat from Argentina.

Looking to the Future

The next session of the Conference of the States Parties will be its annual meeting due to begin on 20 October. It would appear to be incumbent upon this body to recognize the validity of the Tribunal’s Judgment by:

· making provision in the Organization’s 2004 budget for payment of the damage award;

· seeking judicial clarification of the clause in the Judgment that sets aside the decision to dismiss;

· providing the “procedural guarantee” referred to in the Judgment, which it would presumably do by adopting whatever decision is needed to ensure that in future, when a Director-General is confronted with proceedings to terminate his appointment, there will be a right of appeal to an independent and impartial body.

One positive outcome of the Tribunal's Judgment is that Mr. Pfirter and his successors are likely to feel a little more protected from US pressure than they would have been without the Judgment. It is now clear that the US will not be able to marshall the States Parties to vote for the dismissal of a Director-General unless it is in a position to prove grave misconduct before an impartial tribunal. This is a welcome improvement over the situation before the Judgment was issued. After the dismissal of Bustani, until the Tribunal put things right, it looked as if the US was in a position to threaten any Director-General with dismissal.

The world owes Mr. Bustani a multiple debt of gratitude: for having pursued his action in the ILO Administrative Tribunal (at his own personal risk and expense), for having refused to yield to US pressure to resign, and for having reinforced the principle that the Director-General must be free to act independently, exempt from pressure from any State Party and from the threat of dismissal.

*Douglas Scott is a lawyer in Ancaster, Ontario. He is the President of The Markland Group. The views expressed are his own.

II. The BWC After the Collapse of the Protocol Process: The First Meeting of Experts

By Sean Howard*

Efforts to strengthen the 1972 Biological Weapons Convention (BWC) entered a new phase in late August with the first in a series of experts’ meetings at the Palais des Nations in Geneva. For two weeks (August 18-29), experts from 83 of the 150 states parties to the BWC discussed national measures (generally taken to mean national legislation) to ensure implementation of the treaty’s main provisions (week one) and national mechanisms to ensure the security of pathogenic micro-organisms and toxins (week two). The meeting’s main function was to prepare a report for the annual meeting of states parties scheduled for November 10-14. A similar process – an annual meeting on a specific subject, preceded by an experts’ meeting to provide guidance – will be followed in 2004 and 2005. The subjects of these meetings for the next two years will be international capabilities for investigating and responding to suspicious outbreaks of infectious diseases, and the elaboration of scientific codes of conduct.

In 2006, states parties will convene for the Sixth BWC Review Conference. While they will doubtless wish to consider any recommendations emerging from the 2003-2005 meetings, they will also have to decide on their basic approach to strengthening a treaty currently possessing no compliance mechanism or verification regime. Between 1994-2001, an Ad Hoc Group (AHG) of states parties undertook painstaking negotiations on a protocol designed to correct these glaring deficiencies. In July 2001, the Bush administration withdrew from the talks, arguing that no multilateral system of inspections, monitoring and investigation could hope to detect clandestine activity. US opposition to the protocol led to the acrimonious suspension of the Fifth Review Conference in December 2001; when the Conference resumed in November last year, it reached agreement on a Final Document (BWC/CONF.V/17) containing the programme of meetings outlined above, without prejudice to the possible revitalisation of protocol discussions.

The first Meeting of Experts was chaired by Ambassador Tibor Tóth of Hungary, President of the Fifth Review Conference and Chair of the derailed AHG. In an interview with journalist Charles J. Handley (‘A treaty without teeth takes on a bioweapons threat’, Associated Press, August 18), Tóth cautioned against any expectations of quick progress or definite results: “This is not a fifty yard dash. Wait for the dust to settle.”

In Disarmament Diplomacy No. 73 (October/November 2003), Jez Littlewood reported that Tóth urged delegations “to separate the technical from the political” in their consideration of the two agenda items. By and large, this request seems to have been heeded, thus sparing the fledgling process any early diplomatic bruises. Nonetheless, neither of those items can be adequately addressed in a solely technical vacuum. In particular, assessments of the effectiveness of national legislation, in terms both of legal substance and practical implementation, cannot be divorced from the broader policy priorities and goals of states parties – including their level of commitment to multilateralism in general, and to strengthening the BWC in particular.

It is thus not surprising that, while generally sticking to technical matters, the first Meeting of Experts also provided glimpses into the underlying tensions leading to the collapse of the 1994-2001 protocol effort. A US working paper, one of 66 submitted to the meeting, insisted that “traditional arms control measures, including routine declarations or facility investigations” – measures, it is worth noting, which form important elements of the verification regime established under the Chemical Weapons Convention (CWC) – “cannot be effective against biological weapons” for a simple reason: “Biological agents and the facilities and equipment used to produce them for illicit purposes cannot be distinguished from their legitimate counterparts.” Instead of the “traditional” (CWC) approach, the paper argues, a more effective agenda would contain seven main items: effective national legislation and its rigorous enforcement; “confronting non-compliance” – how is unspecified; improving “global disease surveillance”; “coordinating assistance” in the event of a BW attack or suspicious outbreak of disease; enhancing public and private sector biosecurity standards; elaborating codes of conduct for scientists; and “urging non-BWC members to join and adhere to the treaty”.

While these objectives may be worthy enough in their own right, the lacunae in the US agenda invite two levels of suspicion. First, many states parties fail to see how a multilateral compliance and verification mechanism is less likely to succeed than a “legal patchwork” – in the words of a working paper from the Netherlands – of national measures. Second, there is widespread concern that the US rejection of the protocol was motivated in part by a desire to shield from view an expanding range of research potentially crossing the line between legitimate ‘biodefence’ and the development and even weaponisation of new biological warfare agents and delivery systems.

A recent article by Marylia Kelley and Jay Coghlan (‘Mixing bugs and bombs’, Bulletin of the Atomic Scientists, September/October 2003) describes a “biodefence building boom” in the US following the September 11 terrorist attacks, and claims that the “new labs will handle, modify and experiment with some of the most harmful agents known to humanity, including live anthrax, plague, Q fever, and botulism.” It should be noted, however, that a link between US biodefence plans and the Bush administration’s opposition to a BWC protocol was first reported prior to 9/11 (‘US Germ Warfare Research Pushes Treaty Limits’, by Judith Miller, Stephen Engelberg and William J. Broad, New York Times, September 4, 2001).

Unfortunately, the more the US insists on describing the 2003-2005 process as a clean, permanent break from the search for a protocol, the more such suspicions may grow, detracting from what might otherwise prove a modest but nonetheless valuable interim exercise in confidence-building and information-sharing. In what may have been an implicit signal to the US that concerns over biodefence need to be addressed, Canada circulated a working paper at the First Meeting of Experts suggesting that its Biological and Chemical Defence Review Committee (BCDRC), established in 1990, might serve as a “transparency model” for other BWC states parties. The Committee conducts an annual review of biological and chemical defence (BCD) activities by the Department of National Defence in order to provide reassurance to the public that “Canada’s policy of maintaining only a defensive capability with regard to biological and chemical agents, in line with our domestic and international obligations, is fully respected at all times”.

Taking less subtle exception to the US position, a number of delegations continued to argue (at least by implication) in favour of a verification protocol. A German working paper argued that national implementation only becomes “a prime concern of states parties” in “light of the failure to agree upon a verification protocol”, and should only remain a top priority “pending agreement on a new approach towards verification.” A working paper by Japan stressed that “isolated national efforts by an individual state are not enough to tackle the increasing danger posed by biological weapons” and urged states parties to “continue their efforts to strengthen the Convention”. An Australian working paper warned that “from the perspective of the BWC, national legislative regimes invariably appear ad hoc, with gaps in the regulatory coverage of activities, materials and facilities.” The basic question before states parties, then, remains the same now as during the 1994-2001 era: whether such inadequacies and discrepancies can be ironed out – the ‘patchwork’ made smooth and durable – in the absence of a multilateral protocol to frame and focus national efforts.

On August 20, the BioWeapons Prevention Project (BWPP), an international network of NGOs founded in November 2002, hosted a lunch seminar for delegates attending the BWC Meeting of Experts. The Verification Research, Training and Information Centre (VERTIC) presented the findings of a new report entitled “Time to Lay Down the Law: The Status of National Laws to Enforce the BWC”. The study includes the results of a questionnaire circulated to all BWC parties requesting details of legislation enacted pursuant to Article IV of the Convention, and a preliminary survey of 165 pieces of legislation received from 63 countries. The full report and supporting material is available from VERTIC at www.vertic.org/datasets/bwclegislation.html.

Information Note: for the text of all working papers and related documentation, readers are directed to the website of the United Nations Department of Disarmament Affairs (DDA) at http://disarmament.un.org/wmd/bwc/annualmeetings/2003meetings.html.

Sean Howard Ph.D. (University of Bradford) is the editor of Disarmament Diplomacy (www.acronym.org.uk) and Adjunct Professor in the Department of Political Science at the University College of Cape Breton.×

[2] Recorded in a letter from Bustani to US Secretary Powell dated 21 February 2002: www.opcw.org/SS1CSP/CSS1_dg1.html