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Recent developments relating to compliance with multilateral
treaties
in the area of disarmament and international security.
The newsletter of the Markland Group
This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 23, No. 1, August 1996. The version that follows has been slightly edited since it first appeared in the Bulletin.
I. The Non-Proliferation Treaty – DPRK – Compliance Measures
II. Two New Treaties with Compliance Systems
III. IAEA Safeguards Improvement
IV. The Legal Aspects of Breaches of Confidentiality
V. The Comprehensive Test Ban Treaty – The Compliance Provisions
In a recent speech, US Defence Secretary Perry reviewed the various coercive measures used against DPRK in an effort to induce it to rectify its non-compliance. In his review, Secretary Perry referred to “the threat by the United States and other countries in the region to impose economic sanctions.”
Comment: There are differing views as to the role played by sanctions in persuading DPRK to sign the Agreed Framework in October 1994. Most of the comment at the time ignored sanctions and focused on the four-billion-dollar reactors and other economic and political benefits accruing to DPRK under the Agreement. Secretary Perry’s remark provides significant report for the theory that the threat of sanctions was an important factor in facilitating the negotiations.
The African Nuclear Weapons-Free Zone Treaty: signed on 11 April 1996 by 43 African countries at a ceremony in Cairo.
South East Asian Nuclear Weapons-Free Zone Treaty: signed on 15 December 1995 by seven member states of ASEAN plus Cambodia, Laos, and Myanmar at a summit meeting of ASEAN.
The compliance systems under these two treaties bear some similarity to the system contained in the Chemical Weapons Convention. There is however, no provision in either Treaty for mandatory national legislation or for binding arbitration or for unilateral reference of disputes to the International Court of Justice.
In view of the weaknesses in the Safeguards system demonstrated by events in Iraq and North Korea, the IAEA Board of Governors has been engaged for several years in a program to improve the system. Under the name 93+2, the program is expected to result in a new Model Protocol which will supplement the existing Model Safeguards Agreement (INFCIRC/153). When the Board has agreed on the terms of this document, the Director General will be instructed to approach all the existing signatories to the 153-type agreement with a view to having each sign the new protocol.
After many delays, the Board is aiming for final agreement on the terms of a new Model Protocol at its meeting in December. An important obstacle to reaching agreement, at last report, was the position taken by Germany and Belgium; they were objecting to the intrusive nature of certain of the proposed inspection procedures on the grounds that they would be exposed to the loss of industrial secrets.
The Markland Group is currently drafting a brief addressed to the IAEA Board containing some proposals as to the contents of the Model Protocol.
On 26 July, the Provisional Technical Secretariat under the Chemical Weapons Convention concluded a workshop on this topic in The Hague. The workshop was part of an ongoing effort to establish a confidentiality system for the CWC.
Comment: Despite many years of effort, a satisfactory confidentiality system for the CWC remains to be devised. The search is for a system that will be secure enough to reassure States Parties that their commercially sensitive information when obtained by the Secretariat will remain within the Secretariat and will not be disclosed unless it is of a nature that makes it necessary to disclose it to the Executive Council in order to demonstrate non-compliance. As matters now stand, confidential information is available to all States Parties even though it cannot be said to constitute evidence of non-compliance.
Among other problems, there has yet to be agreement on
· a definition of information that is to be kept within the Secretariat;
· the thrust of national legislation to be recommended relating to confidentiality;
· the arrangements for prosecution or extradition of miscreant members of the Secretariat;
· the measures for redressing damage suffered as a result of improper disclosure of sensitive data.
These topics were not dealt with in any depth at The Hague Workshop. Nor has the Preparatory Commission, which has a mandate to develop recommendations for a confidentiality system, made any decisions on these points. A person in attendance at The Hague Workshop has speculated that the reason for the lack of progress in this area is simply that the problems are especially sensitive and the solutions are likely to be complex. It appears that governments would benefit from more assistance from the academic community. The matter is urgent because of concerns that have been expressed about improper disclosure not only under the CWC but under several other multilateral treaties in the area of security. If any member of the CCIL wishes to explore the possibility of doing a study in this field, The Markland Group has a considerable body of material, which could be made available.
A new Comprehensive Test Ban Treaty appears likely to be the next treaty to join a growing list of multilateral disarmament treaties, each having its own compliance system.
In an effort to finalize the negotiations before the end of the summer, the Chairman of the Comprehensive Test Ban Committee tabled his version of the draft treaty on June 28 for review by the sixty-one members Conference on Disarmament (CD). In his text, Jaap Ramaker, the Dutch Ambassador to the CD, “cleaned up” previous drafts by removing the 1,200 brackets (disputed passages), which characterized the previous version of the Treaty’s “rolling text”.
Naturally, many states were unhappy with the compromises proposed in the draft text, but most agreed that such a draft was essential in order to have a finalized treaty ready for approval by the UN General Assembly at its Fall session. Questions of scope, verification, enforcement and entry into force were the main issues in dispute. But tremendous progress has been made in this detailed 88-page text. The scope of the proposed ban covers all nuclear explosions – an important “zero yield” provision – but not computer simulations of such explosions, as some countries (e.g. India) had wanted.
Some of the structures, procedures and treaty language were copied from the 1993 Chemical Weapons Convention. For example, the international organization to be created to oversee the treaty’s verification and implementation, the Comprehensive Test Ban Treaty Organization (CTBTO), will consist of three bodies: a Conference of the States parties, an Executive Council (51 members) and a Technical Secretariat. Another provision copied in part from the CWC deals with national implementation sections; it includes a requirement that each State Party adopt “necessary measures” to prohibit natural and legal persons on the nation’s territory from violating the treaty provisions. There is, however, no mention of any mandatory “penal legislation” as provided in the CWC.
The measures to ensure compliance are contained in Article V of the June 28th text and they are similar to those contained in the CWC. The Conference of the States Parties would be given authority to suspend rights and privileges under the Treaty, to recommend economic sanctions and to refer the matter to the UN Security Council.
The Technical Secretariat will include an International Data Centre (IDC) to receive input from a worldwide network of seismic, infrasound, hydro acoustic and radio nuclide sensors. The US wanted data analysis at the IDC to be minimal but the chairman was sympathetic to arguments that many parties would be unable to perform their own detailed analysis and so the text provides that both raw and analyzed data are to be available to all treaty parties.
The IDC and the CTBTO would have no explicit authority to decide whether a violation has occurred. This is a legal and political decision, which the US and others want to remain a national prerogative. The IDC or the Technical Secretariat may make factual statements that certain events usually associated with a nuclear explosion have occurred, which may in turn trigger on-site inspections (once a majority of the Executive Council agrees.)
Article VI dealing with Settlement of Disputes is similar to Article VIX of the CWC. A dispute may be referred to the ICJ “by mutual consent”. Also, the Conference of the States Parties and the Executive Council are separately empowered to refer any legal question to the ICJ for an advisory opinion.
A debate has been centering around the Entry into Force (EIF) provisions of the treaty. The June 28th draft text would provide that the Treaty would enter into force only when ratified by all 44 countries listed in Annex 2 of the Treaty (which includes the five nuclear-weapon States as well as the three so-called nuclear-capable States – India, Pakistan and Israel). India is objecting to this provision and is threatening to block consensus, which is required for all decisions by the CD. Ratification by the five declared nuclear powers (China, France, Russia, UK and US) has been promised.
As of this writing, one can be fairly certain that the remaining obstacles can be overcome and that the treaty will be ready for approval at the Fall General Assembly. If all proceeds well with the signature and ratification process, then the dream of a ban of all nuclear tests may well become a reality before the end of this century.