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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. 2-3, December 1996 - May 1997.
The version that follows has been slightly edited since it first appeared in
the Bulletin.
I. The Compliance
Provisions Under the New Landmines Protocol
II. IAEA
Safeguards Improvement
III. International
Criminal Court – Relevance to Disarmament Treaties
IV. Verifying
Nuclear Disarmament
Douglas Scott & Walter Dorn
The existing controls on landmines are contained in Protocol II under the Convention on Certain Conventional Weapons (CCW) adopted in 1980. Although accepted by 60 countries, the Protocol is generally viewed as having failed in its objective to provide meaningful protection for civilians. In an effort to widen the scope and strengthen the compliance regime, an Amended Protocol II was adopted on 6 May 1996 by the CCW Review Conference. Anti-personnel mines (APMs) are subject to stronger restrictions: APMs must be detectable, their placement recorded, and they must self-destruct or self-deactivate with 30 days if placed outside marked areas. No other mines may be used. The amended Protocol purports to bind groups involved in “armed conflicts not of an international character” which occur in the territories of State parties. It is permissible to transfer mines only to states, and then only to those that have agreed to the Protocol. Amended Protocol II will enter into effect six months after 20 countries that are parties to the CCW have consented to be bound by it. As of 6 December, no country had filed an instrument of consent with the UN.
Amended Protocol II incorporates a few of the compliance features found in recent disarmament treaties. A new article 14, entitled “Compliance”, requires parties to “take… legislative and other measures… to ensure the imposition of penal sanctions against persons who, … contrary to the provisions of this Protocol, wilfully kill or cause serious injury to civilians and to bring such persons to justice”. Parties are required to ensure that their “armed forces issue relevant military instructions and operating procedures and that armed forces personnel receive [relevant] training….” There are no provisions for verification by inspection or monitoring. The parties, however, have pledged to submit annual reports to the UN Secretary-General on: their legislation and other measures to ensure compliance; actions to train their militaries and to educate their civilians on matters relating to the Protocol; their mine clearance/rehabilitation programs. For the transfer of mines to another state, no end-use certificates are required and no international register is created. There is to be no international administering agency. The only provisions offered in lieu thereof are as follows:
· the UN is required to receive and circulate the annual reports from parties;
· in the event of compliance disputes, the parties are required to “consult each other and to cooperate with each other” either bilaterally or through the UN or other appropriate international procedures;
· the parties are required to hold annual conferences to review the operation of the Protocol.
Canada has taken the position that the world should not be satisfied with Amended Protocol II and should proceed immediately towards a complete ban on all anti-personnel landmines. With this purpose in mind, Canada invited all the nations of the world to attend a conference in Ottawa in October 1996 to discuss a new treaty that would provide for a global ban. Canada’s invitation was accepted by 74 countries (of which 24 were observers). The conference produced the Ottawa Declaration in which conference participants expressed “a commitment to work together to ensure the earliest possible conclusion of a legally binding agreement to ban anti-personnel mines”. Foreign Minister Axworthy then announced that Canada was willing to host a “treaty-signing conference” in Ottawa in December of 1997. Subsequently, arrangements were made for a series of preparatory conferences to take place in March (Vienna), April (Bonn), June (Brussels) and September (Oslo). The Bonn conference in late April will deal with compliance matters.
This so-called Ottawa Process was challenged in the Conference on Disarmament on the basis that the CD was the proper forum for negotiating treaties on arms control and disarmament. The rules of the CD require it to act by consensus, whereas the Ottawa Process involves proceeding by agreement among whatever percentage can be mustered provided it is large enough to be considered worthwhile. The challenge in the CD was not successful and it is anticipated that there will be possibly as many as 80 countries attending the treaty signing conference in Ottawa in December.
The previous issue of this column (CCIL Bulletin, August 1996, page 15), included information about the IAEA Board of Governors’ project to improve and strengthen the IAEA Safeguards System (the 93+2 project). It was stated that the Board of Governors had fixed the end of December as the target date for agreement on a Model Protocol that would describe new procedures for inspection and monitoring.
The Board has been wrestling with this problem for more than four years. Finally, agreement was reached on the text of the new Model Protocol on 3 April. On that date, a special committee which the Board had convened to consider the matter made its decision. Since the committee was composed of all members of the IAEA and since it made its decision by consensus, confirmation of the decision by the Board (set for mid-May) is expected to be a mere formality. The document will then be submitted to all non-nuclear-weapon States Parties to the NPT with a request that they sign it and accept its new inspection procedures.
Until the last minute, Germany, Japan and various European countries had been opposing some of the new inspection procedures that were being proposed on the grounds that they were unduly intrusive. At this juncture, it is not known whether the agreed text (which has not been published) reflects the position taken by these countries, or whether they were persuaded to go along with the majority.
The Markland Group’s brief on the 93+2 project (referred to in the last issue) was delivered to the representatives of all the members of the Board of Governors in December. It advocated that if it appeared necessary to make too many concessions to the position taken by Germany and Japan, the Board should be prepared to deviate from its traditional practice of deciding things by consensus and decide this issue by two-thirds majority. It remains to be seen what concessions were involved in reaching agreement on the Model Protocol.
The question whether consensus is the best rule to follow for purposes of negotiating a draft treaty will arise in the context of negotiations for future treaties. Indeed, the question seems to have been considered by Canada in connection with its initiatives relating to landmines. The Ottawa Process referred to above under “Landmines” involves an approach not unlike that recommended in the Markland Group brief. Copies of this document are available without charge at the address noted below. Ask for the “93+2 brief”.
Discussions are continuing at the UN aimed at the formal opening of negotiations for a treaty that would include a statute establishing an international criminal court. Currently under consideration is the Draft Statute prepared by the UN International Law Commission in 1994. Articles 20 to 24 detail the crimes with respect to which the court would have jurisdiction. Included is an item: “…crimes established under or pursuant to treaty provisions listed in the Annex…” Twelve treaties are listed in the Annex, including the various Geneva Conventions on the laws of war, but omitting any treaty dealing with arms control or disarmament.
For more information on the status of negotiations, see Some Examples of Current Issues of International Law of Particular Importance to Canada, prepared by DFAIT and distributed at the CCIL Annual Meeting in October 1996; for additional detail, see A.S.I.L. Newsletter September/October 1996, page 15. The draft statute (60 articles) is available on the Internet at the following address: gopher://gopher.igc.apc.org:7030/00/icc/ilcrpt.94.
Pressure continues to grow upon the declared nuclear powers to commence negotiations towards a treaty to impose a total ban on nuclear weapons. The question whether such a ban could be adequately verified is starting to receive some attention. An important study on this question has been recently published by the Henry L. Stimson Centre in Washington. The study was conducted by Steve Fetter, an associate professor at the University of Maryland, a member of the National Academy of Science’s Committee on International Security and Arms Control and a consultant to several US Government agencies.
Professor Fetter examines a wide variety of techniques. As a prelude to destroying nuclear weapons, methods will be needed for determining the number of weapons in existence in each nuclear-weapon state as well as the existing stockpiles of fissile materials. He concludes that a carefully constructed verification regime could be designed so as to provide assurance that the great majority of weapons had been accounted for; but that “no conceivable verification regime could provide absolute assurance” that every last weapon had been identified. Any system would always allow for the possibility that a small number had not been accounted for which he estimates at “a dozen or even a hundred” weapons.
He is therefore driven to the conclusion that nuclear disarmament would be possible only when the political atmosphere in the world developed to the point when the existence of nuclear weapons is largely irrelevant. In the meantime, he recommends immediate moves to declare in detail all existing stocks of weapons, and to allow these declarations to be verified. This would build confidence and facilitate subsequent accounting.
He suggests that it could be useful to have an agreement whereby states were allowed to possess nuclear weapons and components on their territory but under international monitoring. “An attempt by any state to retrieve these components would trigger alarms in other countries leading them to assemble and disperse their nuclear weapons.” This would deter cheating and “would remove the incentive for states to keep “a few bombs in the basement” as a hedge against the possibility that other states might do the same.”
Verifying Nuclear Disarmament by Steve Fetter, occasional paper number 29, October 1996. The full paper is available on the Internet in PDF format http://www.stimson.org/pub/stimson/zeronuke/wmd-pub.htm . A print copy is available at no charge by e-mail request to: hkee@stimson.org, or by telephone: (202) 223-5956, or by fax: (202) 785-9034.
The Markland Group has available for students a memorandum entitled “Career Possibilities for Persons with Specialized Knowledge in the Field of Compliance Methodology as It Relates to Disarmament Treaties and Other Multilateral Treaties.”
In relation to multilateral treaties, compliance methodology can be defined as the study of systems and methods by which treaty parties can be induced or persuaded to comply. Where a violation does occur, as in the case of North Korea, compliance methodology turns to searching for the means by which the violator can be persuaded to rectify its behaviour. Compliance methodology concerns itself primarily with systems that can be installed within treaties.
Attached to this memorandum is a 20-page annex containing information about various institutions that might be interested in hiring persons with specialized knowledge in this field. The institutions (with addresses and telephone numbers) are grouped under the following headings:
Academic
Government
The UN and Other Inter-Governmental Organizations
Research Institutes – Proactive
Research Institutes – Academic
Information is included about possible sources of grants, scholarships, fellowships and internships. Copies of this document may be obtained by contacting the Markland Group at the address noted below. Ask for memo on “Career Possibilities”.
The Markland Group has prepared a list of thesis topics suitable for students in an LLM program. Some of the topics relate to compliance methodology as it applies to disarmament treaties. Others concern compliance with treaties and agreements in the field of human rights and the environment. Anyone interested in having a copy of this list may obtain one by contacting the Markland Group at the address noted below. The Markland Group has a body of material relating to each of the topics on the list and is prepared to offer guidance in the research required for the thesis. Ask for “List of Thesis Topics”.
The Markland Group is an organization of academics and other concerned citizens working for the protection and strengthening of disarmament treaties. Its materials are available without charge to CCIL members. Address: 203-150 Wilson Street West, Ancaster, Ontario, L9G 4E7; telephone: (905) 648-3306; facsimile: (905) 648-2563; e-mail: marklandgroup@hwcn.org.