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. 24, No. 1,
Winter 1997-98. The version that follows has been slightly edited since it
first appeared in the Bulletin.
II. The Biological Weapons Convention
III. The Comprehensive Test Ban Treaty
IV. The Chemical Weapons Convention
V. A Leak in the Iraqi Oil Sanction
VII. Markland Group Student Outreach
Project
One hundred and twenty-three countries attended a
Conference from December 2 - 4, at which time they signed the new Landmines
Treaty, known officially as the Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer o f Anti-Personnel Mines and on Their
Destruction. The text of the final draft of the Treaty can be seen on the
Internet at www.mines.gc.ca.
The Treaty will enter into force six months after forty
designated countries have ratified it. A useful summary of the Treaty's
provisions can be seen in Jo-Anne Velin: "Stage Three of the Ottawa
Process: The Oslo Diplomatic Conference", Disarmament Diplomacy, No. 18,
September 1997, pp. 6-14, (available on the Internet www.gn.apc.org/acronymn).
When the final wording of the Treaty was negotiated at the
diplomatic meeting at Oslo in September, the compliance system was the subject
of much debate. The result was a compromise consisting of a system that is
somewhat rudimentary although certainly helpful.
There is to be no international organization similar to
the OPCW under the Chemical Weapons Convention, which has authority to conduct
inspections and to decide on action to be taken against violators. Instead, the
approach adopted is to require each St ate Party to make an annual report
setting forth the steps taken by it to destroy its mines and to do the various
other things required under the Treaty. These reports are required to be filed
with the UN Secretary General as Depository of the Treaty. The Treaty does not
authorize the Secretary General to do anything with these reports except to
send them to all States Parties.
If a country has concerns about a possible violation, it
is entitled to raise the matter at the next Annual Meeting of States Parties.
Alternatively, after completing certain preliminaries, it is entitled to ask for
a Special Meeting of States Parties, which will be held if one-third of the
States Parties are in favour.
The meeting of States Parties is entitled to conduct a
fact-finding mission on the territory of the State Party in question. The vote
required for this purpose is two-thirds majority of those present and voting.
The State Party in question is required to admit the inspectors but is entitled
to prohibit their access to sensitive areas. The rules on this point are
somewhat similar to the rules of "managed access" under the CWC
although more restrictive. There are no provisions governing the content of the
report of the fact-finding mission except the following:
All information provided in confidence and not related to
the subject matter of the fact-finding mission shall be treated on a
confidential basis.
Presumably the report of the fact-finding mission could
contain recommendations as to the steps that should be taken by the State Party
in question in order to bring it into compliance. Whether the meeting of States
Parties, when it receives such a report, would be entitled to make similar
recommendations is more problematical. The provision on that matter reads as
follows:
The Meeting of the States Parties or the Special Meeting
of States Parties may suggest to the States Parties concerned ways and means to
further clarify or resolve the matter under consideration, including the
initiation of appropriate procedures in conformity in international law.
This vague wording may be contrasted with the provisions
of the CWC. The OPCW Executive Council is authorized to request a State Party
to take any measures it may specify to rectify the non-compliant behaviour and
to specify a time limit for complying; upon default, the OPCW Conference is
authorized to suspend rights and privileges arising under the Convention, and
in more serious cases, to recommend that all States Parties impose economic
sanctions. The Landmines Treaty contains no reference to economic sanctions.
Nor is there any mention of referring problems to the UN
Security Council. In the case of disputes arising as to interpretation of the
Treaty, there are no provisions for settlement through arbitration or judicial
process.
The compliance system does contain one very significant provision
in Article IX:
Each State Party shall take all appropriate legal,
administrative and other measures, including the imposition of penal sanctions
to prevent and suppress any activity prohibited to a State Party under this
Convention undertaken by persons or on territory under its jurisdiction or
control.
This provision will require all States Parties to have
legislation making it a crime for individuals to engage in activities
prohibited to States Parties under the Treaty. Similar provisions are contained
in the CWC and the Comprehensive Test Ban Treaty. During the negotiations for
the CWC, the Markland Group campaigned for the inclusion of a provision to this
effect and subsequently the CWC became the first disarmament Treaty to contain
such a provision.
Suggestions have been put forth to the effect that NGOs
might be able to play a role in monitoring compliance. This highly laudable
suggestion could mean that there would be an international network of NGOs
working for compliance and obtaining evidence of non-compliance. This
arrangement might partly make up for an important weakness in the Treaty.
Instead of routine inspections as in the CWC, the Treaty provides that the only
way an inspection can occur is when it is specially ordered by an Annual or
Special Meeting of the States Parties. An NGO network might be able to provide
some of the evidence that an inspection could supply. In order to perform this
function adequately, it would be important for the NGO network to have access
to the reports filed by the States Parties.
It must be remembered, however, that the network will have
no intergovernmental organization to work with - such as the IAEA or the OPCW.
There will be no organization for it to report to if it finds evidence of a violation.
Nor would the Secretary General have authority to deal with problems presented
to him by the network. Instead, the network would have to persuade a State
Party to raise the matter at the next Annual Meeting of the States Parties.
Nonetheless, an NGO network could do much to promote
compliance if it were given access to the reports filed by States Parties and
if it were given status to appear at meetings of States Parties and make
presentations.
(Brian Finlay-Dick contributed significantly to this
section.)
v Opened
for signature: April 1972
v Entry
into force: 26 March 1975
v Parties
to date: 139
v Depositories:
Russia, UK and US
When the Convention was originally negotiated, the
international community thought that a verification protocol was not only
impractical but superfluous. Attitudes have changed and it is now widely
recognized that there is a pressing need for an agreement on procedures to deal
with verification and compliance.
The move to agree on a legally binding protocol began in
1991 when the Third Review Conference established an ad hoc group of
governmental experts which became known as the VEREX Group. Included in its
mandate was the evaluation of potential verification measures. The VEREX
Report, containing twenty-one verification measures, was considered by a
Special Conference of States Parties in 1994 which decided to establish a body
to negotiate a legally binding protocol which became known as the BWC Ad Hoc
Group.
Under the chairmanship of Tibor Tóth of Hungary, the Ad
Hoc Group started meeting in January 1995. The Group produced a first version
of a rolling text of the proposed protocol in June 1997. The latest version was
published in September, comprising over two hundred pages, albeit with a large
number of square brackets. This document does not appear to be available on the
Internet; copies can be obtained from the office of Conference on Disarmament
in Geneva.
A useful account of the current status of the
negotiations, written by Tibor Tóth, can be seen in the CBW Conventions
Bulletin, No. 37 (September 1997) published by the Harvard Sussex Program on
CBW.
It appears that there are significant disagreements among
the negotiating parties on some fundamental points. Tibor Tóth in his article
outlines the points at issue.
On 21 October 1996, a Cubana Airlines pilot traversing the
central region of his country reported to domestic flight control that he had
seen a small aircraft releasing a white substance from its fuselage. The
aircraft was of a type used by the U.S. for crop dusting and had U.S. markings.
Two months later, on 18 December 1996, the presence of a plague known as thrips
palmi appeared at local potato plantation in Matanzas province in the area
where the plane had been seen.
Cuba later alleged that the U.S. government had willfully
disseminated a biological agent in contravention of the 1972 Biological Weapons
Convention, to which both Cuba and the U.S. are parties. In March Cuba became
the first country to make use of a new mechanism for resolving disputes under
the Convention.
Details of the new mechanism are meagre. The Convention
itself contains nothing in the way of a verification/compliance system, but a
rudimentary mechanism for resolving disputes was agreed upon at the 1991 BWC
Review Conference. The Final Declaration of that Conference (adopted by
consensus among all States Parties) lays down a mechanism to be used " ...in
solving any problems which may arise in relation to the objective of, or in
relation to the application of the provisions of, the Convention" (UN Doc.
BWC/CONFIII/23, p. 15)
The details of the mechanism may be summarized as follows:
1. Any
State Party may request a "consultative meeting" which must be held
within 60 days. All States Parties must be invited.
2. Voting
on matters of procedure is by simple majority, and on matters of substance, is by
consensus if possible, and if not, after a period of deferment, by two-thirds
majority.
3. The
consultative meeting may suggest ways and means for clarifying ambiguous and
unresolved matters.
4. The
consultative meeting "may initiate appropriate international procedures
within the framework of the UN and in accordance with its Charter."
5. "The
Conference considers that States Parties shall cooperate... in clarifying
ambiguous and unresolved matters... [and]... in appropriate international
procedures within the framework of the United Nations and in accordance with
its Charter."
At the request of Cuba, a "formal consultative
meeting" was convened in Geneva in August. In the absence of any specific
rules of procedure, the Consultative Meeting has taken a number of significant
procedural steps:
1. Sessions of the Consultative Meeting were held over a period of three days in which all present were apparently given an opportunity to present evidence and to make submission. Seventy-four States Parties attended these sessions; three signatory states were also in attendance.
2. The meeting appointed Ian Soutar of the United Kingdom to be Chairman; six vice-chairmen were appointed from the representatives of Brazil, Canada, Iran, Netherlands, Nigeria and Russia.
3. At the conclusion of the session, some States Parties took the view that the "obligation to consult and cooperate... had been fulfilled by the holding of the formal consultative meeting". The Meeting, however, decided to ask the chairman and s ix vice-chairmen to receive submissions from States Parties (to be provided by 27 September); after which, the members of the chair group were asked to consult among themselves and report the result of these consultations to all States Parties by 31 December 1997.
4. The Meeting issued a report of its work on 29 August 1997: UN Document BWC/CONS/1. The report did not make it clear whether the Chairman is to reconvene the Meeting or merely deliver his report to all States Parties in writing. Nor does the re port state whether or not any decision was made as to whether the report should reflect a consensus among the seven members of the chair group.
5. Since August, the members of the chair group have held a number of meetings for the purpose of receiving submissions and consulting among themselves.
6. Neither
the chair group nor the Consultative Meeting have undertaken any active
investigations.
Another suspicious situation seems to be developing - this
time in Russia. (The Convention was ratified by the USSR in 1975, and 1992,
Russia formerly acknowledged that it was bound by the Convention and assumed a
role as one of the three Depositories.)
In an article in the New York Times (28 November 1997),
Raymond Zalinskas of the University of Maryland points to the mounting concern
over the fact that Russia has refused to admit inspectors to its biological
facilities despite having agreed to do so in a trilateral pact made with the US
and the UK in 1992. Professor Zalinskas also alludes to a 1996 report from
Reuters indicating that Russia has deliberately developed a new strain of
anthrax that is "completely resistant to anti-biotics". The Reuters '
report was based on information from Jane's Defense Weekly (ACR, 1997, p.
701.B165).
The Russian problem could end up being investigated under
the new complaint machinery currently being tested by Cuba in its complaint
against the US. Professor Zalinskas favours this option. He recommends that an
investigation into all Russian biologic al activities be launched under the BWC
machinery. If this course is adopted, the manner in which such an investigation
is handled could be influenced by the nature of the proceedings agreed upon in
the Cuba case. It is interesting to note that Russia is a member of the
six-nation body appointed to chair the Consultative Meetings in the Cuba-US
incident.
v Opened
for signature: 24 September 1996
v Ratifications
required for entry into force: 44 listed states (countries with nuclear power
reactors or research reactors)
v Signatories
to date: 148
Ratifications to date: 7 (including 1 country on the list
of requisite states - Japan)
This information was obtained from the website of the
Comprehensive Test Ban Treaty Organization: www.ctbto.org.
Although there are some significant differences, the
Treaty's compliance regime is closely similar to the regime established under
the Chemical Weapons Convention.
A new treaty administering organization is established
(the CTBTO), a close replica of the OPCW. The Executive Council comprises 51
members (CWC: 41). It votes by simple majority on matters of procedure and
two-thirds on matters of substance. The Conference of the States Parties meets
annually with voting rules similar to those applying to the Executive Council.
There is no provision requiring States Parties to file
declarations of the type found in the CWC. Instead, the data-gathering regime
consists of an International Monitoring System which is composed of a network
of seismic stations, hydro acoustic monitors and atmospheric stations for
measuring radio nuclides.
On-site inspections are required but not on a routine
basis as they are under the CWC. Inspections occur only when requested by a State
Party and when the request is supported by 30 (out of 51) members of the
Executive Council. The inspected State Part y is required to accept the
inspection, but has the right to restrict access in accordance with the rules
of "managed access" which are similar to but more restrictive than
the analogous rules in the CWC.
In order to deal with violations, the Executive Council
has the right to issue a rectification request detailing specified measures to be
taken by the State Party in question within a specified time. In the event of
default, the Conference of the State s Parties is entitled to restrict or
suspend rights and privileges and may recommend collective measures including
sanctions. (These arrangements again are a replica of a provision in the CWC.)
The dispute settlement provision is also similar to the
one in the CWC. It allows the Executive Council or the Conference of the States
Parties to request an advisory opinion from the ICJ without the consent of the
other party to the dispute.
Each State Party is required to have legislation or
equivalent arrangements to prohibit natural and legal persons from undertaking
any activity prohibited to a State Party. The relevant provision is a slightly
modified version of Article VII in the CWC .
For commentary on the Treaty see Jozef Goldblat, "The
CTBT: Analysis and Assessment", UNIDIR Newsletter, UNIDIR/97/2/Special
Issue, pp. 5-11.
As was done in the case of the CWC, a preparatory
commission has been established in order to set up the machinery that will be
needed upon entry into force. The PrepCom consists of two organs: a plenary
body consisting of 148 signatory states and a provisional technical secretariat
(CTBTO - PTS).
The main task of the PrepCom will be to establish the
global verification system consisting of a network of 321 monitoring stations
to be built and operated by the host countries. The stations will transmit data
to the International Data Center which is to be established in Vienna.
Ambassador Daniela Razgonova of the Slovak Republic has
been elected to chair the plenary body. Mr. Wolfgang Hoffman of Germany has
been appointed Executive Secretary of the PTS. With a budget for 1997 of US$
27.4 million, the PTS is expected to have one hundred and ten persons on its
staff by the end of 1997. Further information can be obtained on the website: www.ctbto.org/ctbto/index.html.
(Submitted by Cornel König)
Although the Treaty is not yet legally binding on Russia
in the full sense, accusations were circulating during September and October
that Russia had conducted a nuclear test in the Arctic Ocean. After hesitating
for many weeks, the United States has now acknowledged that, although a seismic
event did occur, it was not a nuclear explosion.
A report published in The Arms Control Reporter (July -
August, 1997 Edition - pages 608.B 468-469) stated that according to Clinton
administration officials,
"Russia was suspected of conducting a nuclear test on
16 August (1997)..."
The report asserted that the suspected test occurred
approximately 37-43 miles from the island of Novaya Zemlya and registered 3.8
on the Richter Scale.
Russia and the United are both signatories to the
Comprehensive Test Ban Treaty, although neither has ratified it. Even if they
had, the treaty would not be in force because it requires ratification by 44
designated states. Nevertheless, a nuclear test by Russia at this time would be
regarded as contrary to the spirit of the Treaty. As to Russia's legal position
under the 1969 Vienna Convention on the Law of the Treaties, it is worth
recalling the exact wording of Article 18:
Article 18
Obligation not to defeat the object and purpose of a
treaty
prior to its entry into force
A State is obliged to refrain from acts which would defeat
the object and purpose of a treaty when:
a. it has signed
the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its intention
clear not to become a party to the treaty; or
b. it has
expressed its consent to be bound by the treaty, pending the entry into force
of the treaty and provided that such entry into force is not unduly delayed.
Russia's response to these suggestions was to deny any
nuclear test while explaining that
"... it was conducting subcritical experiments...
these experiments [were] not prohibited by the CTBT. This test site activity
had no relation to the seismic event in question (which was 130 km away),
except that it occurred on the same day." (Coalition to Reduce Nuclear
Danger - Issue Brief Vol. 2, No. 5, October 29, 1997, page 1.)
John Parachini, Senior Associate with the Henry L. Stimson
Center in Washington, D.C., expressed the following opinion regarding the
controversy related to this event,
"There was clearly some seismic event... Given the
seismic data, it was unlikely it was a nuclear detonation. The Treaty would help
us but not obviate [the situation], because there are cheating scenarios such
as conducting tests in crevices in the ocean which would be hard to
verify." (Interview with John Parachini, December 1, 1997.)
Dr. Lynn R. Sykes, a seismologist at the Lamont-Doherty
Earth Observatory at Columbia University, stated in an interview with the New
York Times (October 21, 1997),
"We need an investigation. This is crucial time for
the test ban and this issue is absolutely central to whether it appears
verifiable. There are a number of people in Government who claim we cannot tell
if it was a blast or an earthquake."
A United States government official, quoted in the same
article, confirmed the dilemma which appeared to exist for the Clinton
Administration,
"... the government is still divided about the
event's nature. 'We haven't reached a conclusion on whether the event was an
explosion or an earthquake,' he said. 'The data is rather ambiguous.'"
Several recent statements from United States government officials
indicate that there has been a change in their thinking and that, after
considering the evidence more closely, they have concluded that the seismic
event in question was not a nuclear explosion. Harold P. Smith, Assistant to
the Secretary of Defence for Atomic Energy, stated,
"I personally think it was an earthquake."
(Issue Brief Vol. 2, No. 5, October 29, 1997, Coalition to Reduce Nuclear
Dangers)
On November 4th, 1997, the Central Intelligence
Agency issued a statement, which confirmed the non-nuclear nature of the
seismic event of August 16th, 1997, but left undetermined, the
question whether an earthquake or explosion had occurred.
"During the same timeframe that the weapons related
experiments were being conducted, a seismic event occurred on August 16th,
1997, in the Kara Sea. That seismic event was almost certainly not associated
with the activities at Novaya Zemlya and was not nuclear. However, from the
seismic data, experts cannot say with certainty whether the Kara Sea event was
an explosion or an earthquake." (Statement issued by the C.I.A. dated
4 November 1997 - Review of Activity and Events Relate d to Russian
Nuclear Test Site on Novaya Zemlya).
On the same day, The Washington Post published an article
by its reporter R. Jeffrey Smith entitled "U.S. Formally Drops Claim of
Possible Nuclear Blast." The article quotes the above statement by the
C.I.A. There has been no public statement by any United States government
official denying or modifying the position reported in this story.
It is relevant to ask what might have happened if the
Treaty had been in force. Joe Cirincione, Senior Associate, with the Henry L.
Stimson Center, expressed the following opinion:
"A global comprehensive monitoring of seismic, hydro
acoustic, and radio nuclide sensors system of these three types would have been
running. It would have given a clearer determination of the nature of this
event from the beginning." (Interview with Joe Cirincione, Senior
Associate - The Henry L. Stimson Center - November 26, 1997.)
Despite all the additional evidence that would be
forthcoming from the monitoring system, if the United States was still
suspicious of a nuclear explosion, had the Treaty been in effect, it could have
made use of the Treaty's verification machinery. Following the process
summarized above under the heading "The Compliance Regime", the
United States could have requested an on-site inspection. This would have
required the support of 29 other members of the Executive Council, (assuming
the United States was a member of this body).
(The author wishes to acknowledge the contribution of
research material by Daryl Kimball, Executive Director, of Coalition to Reduce
Nuclear Dangers, Washington, D.C.)
v Open
for signature: 13 January 1993
v Entered
into force: 29 April 1997
v Parties
as of November 1997: 105
v Depository:
UN Secretary General
Following entry into Force on 29 April, 1997, the first
meeting of the Conference of the States Parties took place in The Hague on 6-23
May. As the "principal organ" of the new OPCW (Organization for the
Prohibition of Chemical Weapons), the CSP set about appointing members of the
other two organs of the OPCW: the Executive Council and the Technical
Secretariat.
In electing the 41 members of the Executive Council, the
CSP was required to follow the rules laid down in the Convention for
geographical representation. Ten seats are allotted to the group known as
"West European and Other". Canada was not among those chosen in this
group.
The CSP then proceeded to appoint the Director-General of
the Technical Secretariat. José Maurício Bustani of Brazil was elected by
acclamation. With the rank of Ambassador, Mr. Bustani was his country's chief
liaison for matters relating to compliance with the Convention.
Early defaults in financial contributions have been
largely cured. By the end of October, although 47% of the States Parties were
in default, the total represented only 3.9% of the budget (OPCW Information
Sheet, 30 November 1997).
Initial declarations are required within 30 days of entry
into force (29 April 1997). Thirty percent of the States Parties were in
default as of the end of November. This figure includes the US. Although its
declaration covering military data has been filed, it is in default in respect
of its declaration relating to data from its chemical industry. The delay is
due to the fact that the US Congress is refusing to enact the legislation
needed to allow the Administration to obtain the required data from t he
industrial sector. According to Amy Smithson of the Henry L. Stimson Center in
Washington, both the House and the Senate are playing games with one another
and the Administration itself is complicit in the delaying tactics.
The CWC is the first multilateral treaty to contain an
elaborate confidentiality regime. Nonetheless, it seems that the OPCW is
encountering problems due to the arrangements for ensuring the confidentiality
of information required to be provided by States Parties through declarations
and inspections. France and Germany, in particular, are concerned as to whether
or not these arrangements will be sufficient to prevent their industrial
secrets from falling into the hands of competitors. The fear exists that some
countries may be withholding information out of concern about the efficacy of
the confidentiality system. (ACR, 1997, p. 704.B.632). Refinements to the
system are under discussion. The matter was on the agenda for the second
session of the Conference of the States Parties taking place in The Hague in
January.
In its present form, the confidentiality regime developed
under the CWC is contained in two documents: The Annex on Confidentiality (part
of the Convention) and The Policy on Confidentiality, a document developed by
the Preparatory Commission and approved by the First Meeting of the Conference
of the States Parties in May 1997. (This document is available on the Internet:
www.opcw.nl/ci/ci-dec13.htm)
It appears that Iraq has found a way of circumventing the
UN blockade against oil exports. According to information given by the U.S. to
the UN's Sanctions Committee on 18 November 1997, Iraqi ships have been hugging
the coast of Iraq and Pakis tan inside territorial waters thus out of the reach
of the UN Naval Forces. An international naval force is standing guard in the
Persian Gulf composed of ships from Australia, Belgium, Britain, Canada,
Netherlands, New Zealand and U.S.
The shipments appear to be ending up in Pakistan. The
proceeds of the sales allow Iraq to pay for imports prohibited by UN sanctions.
The amounts are still small, but growing - 10 million dollars in 1996 and 75
million dollars in 1997. The report does not indicate why the Iraqis would not
be using this route to funnel unlimited quantities through the blockade.
Apparently, both Iran and Pakistan are prepared to flout the UN Security
Council Resolutions on the sanctions. (New York Times, 17 November 1 997).
Hans Blix retired 1 December as Director-General of the
IAEA at the conclusion of his term of office. The IAEA General Conference has
appointed him Director-General Emeritus. There has been no announcement as to
his plans for the future. It is understood that he will be living in Sweden and
writing a book dealing with the future of energy production.
José Maurício Bustani has been appointed Director General
of the OPCW with headquarters at The Hague. Ambassador Bustani was Brazil's
Chief Liaison Officer for disarmament and non-proliferation.
Richard Butler has been appointed to succeed Ambassador
Ekéus. Prior to his appointment, Ambassador Butler was Australia's Permanent
Representative to the United Nations.
Rolf Ekéus, Executive Chairman of the United Nations
Special Commission (UNSCOM) established by the Security Council to oversee the
destruction of Iraq's weapons of mass destruction, left his post on 1 July to
become Sweden's Ambassador t o the U.S.
Mohammed ElBaradei has been appointed to succeed Dr. Blix
as Director-General of the IAEA. Dr. ElBaradei formerly held posts as Director
of the Agency's Legal Division, Assistant Director of the Secretariat and
Director of its External Relations Division. Prior to that, he held various
Egyptian diplomatic posts.
Wolfgang Hoffman of Germany has been appointed Executive
Secretary of the Provisional Technical Secretariat of the CTBTO with
headquarters in Vienna.
Daniela Razgonova of the Slovak Republic has been
appointed Chair of the PrepCom of the Comprehensive Test Ban Treaty
Organization (CTBTO).
The Markland Group has received a grant from the John
Holmes Fund to subsidize its Student Outreach Project. (The John Holmes Fund is
managed by the Canadian Centre for Foreign Policy Development with the funds
supplied by DFAIT.) The award is to be used for educating students and raising
general awareness on the issue of compliance methodology as applied to
disarmament treaties through guest lectures, a masters thesis program and an
essay competition. Further information is available from the Markland Group at
203-150 Wilson Street W., Ancaster, L9G 4E7; tel: 905.648.3306; fax:
905.648.2563; e-mail: marklandgroup@hwcn.org
; website: www.hwcn.org/link/mkg
Is the XYZ Treaty Verifiable? - Douglas Scott,
President, Markland Group
This question may be appropriate for the US, but is it the
right question for the rest of the world?
Any country that poses this question to itself when
considering a new treaty can be taken to be thinking that, if the treaty's
verification system turns up a violation, the country would know what to do
about the problem and would take whatever steps w ere appropriate and that it
would not need any help from any international organization except possibly to
assist with obtaining compliance information. But having received such
information, the country would no doubt be thinking that it would have no further
need for an international organization, because it would be assuming that it
alone would determine whether the information amounted to a violation, in which
event it alone would be dealing with the problem without assistance from any
international organization.
If this scenario describes US priorities with any
accuracy, it may explain why the US, when considering a new treaty, is
interested mainly in what the treaty has to offer in the a way of a system for
obtaining information and takes little interest in any treaty provisions that
might authorize a treaty administering organization to go beyond data
collection and to enter the area of evaluation and enforcement. Given the
overwhelming power and influence of the US, such an approach is understandable,
and in fact, reasonable from the point of view of the US and its perceived
interest.
But the situation is different for other countries in the
world. They need a treaty organization that will provide not only information
as to compliance but also assistance when it comes to dealing with violations
or suspected violations. They need an organization with machinery, structures
and procedures through which suspected violations can be authoritatively
evaluated, and through which confirmed violations can be dealt with by
collective action.
In other words, the rest of the world needs a
multi-purpose organization - one that can offer compliance information,
evaluation and enforcement. Whereas the US is by nature and understandably
interested mainly in an organization that offers nothing but compliance
information. This no doubt explains why the US has a habit of focussing on
verification alone and ignoring evaluation and enforcement.
So the question whether a treaty is verifiable must be
considered inappropriate except for the US. For the rest of the world, the
question should be rephrased along the following lines:
ˇ Is the treaty sufficiently compliance-tight?
ˇ Is the treaty secure enough?
ˇ
Does the treaty have an adequate compliance system?
These questions focus not only on the adequacy of the treaty's system for acquiring compliance information but also on the adequacy of its system for dealing with non-compliance through collective measures and other approaches.