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. 2, Spring-Summer 1998. The version that follows has been
slightly edited since it first appeared in the Bulletin.
I. The Chemical Weapons
Convention
II. The
Biological Weapons Convention
1. BWC
Verification Protocol Negotiations
2. Cuba's
Complaint Against The U.S.
III. The
ABM Treaty - Recent developments
IV. Iraq:
The On-Going Monitoring and Verification System
Latest reports from the Organization for
the Prohibition of Chemical Weapons (OPCW) demonstrate that the era of
treaty-mandated disarmament has arrived. The OPCW press release of 24 June 1998
reports that
Problems, however, are being experienced
in the matter of declarations: 26% of the States Parties have not submitted the
requisite initial declarations despite repeated requests. Also, 43.9% of the
budget contributions for 1998 are in arrears. The Markland Group inquired of
the OPCW as to its policy on the release of names of the countries involved in
these defaults. No names are being released as matters now stand, but those in
default of budgetary contributions may be named in the near future. On the
other hand, the release of names of those in default of declarations could be
more delicate and no moves in this direction are being planned at present.
(Brian
Finlay-Dick contributed significantly to this section)
The latest in a series of meetings of the
Ad Hoc Group under the BWC for the purpose of negotiating a verification
protocol for the Convention took place in Geneva in March 1998. For a brief
background note on this matter, see the previous issue of Compliance Matters.
At the conclusion of the five-day
session, the so-called "rolling text" of the draft protocol reached
247 pages. The lion's share of the rolling text remains heavily bracketed.
Discussions remain stalemated over myriad questions including those of compliance,
confidentiality, scientific and technological exchange for peaceful purposes,
and dispute settlement.
Non-aligned countries continued to push
hard for stronger technical and scientific cooperation measures to be included
in the compliance protocol. Some non-aligned states also called for an end to
the current export control mechanisms, such as the one put in place by the
Australia Group.
For their part, both the Biotechnology
Industrial Organization (BIO) and the Pharmaceutical Research and Manufacturers
of America (PhRMA) have expressed a willingness to support the BWC - but only
if their concerns related to inspections are met. PhRMA maintains that, while
the regular and challenge inspections of their members' facilities, as proposed
by the AHG, may be acceptable, each individual firm must ultimately have
jurisdiction to determine what is proprietary and therefore, what is
'out-of-bounds' for international inspection. In the case of the Chemical
Weapons Convention, the support of private manufacturers was given without
reservation which proved to be crucial to the successful negotiation of the
treaty. The same cannot be said for that PhRMA which is proving to be an
impediment to the negotiations.
Additional insight into the state of the
negotiations is provided by Professor Graham Pearson writing in the May 1998
issue of Trust & Verify. He notes that the EU has taken a common
position committing 29 States to work for declarations, visits to facilities,
rapid and effective investigations into concerns and a cost-effective and
independent organization. Professor Pearson sees much common ground with the US
position as set forth in its fact sheet of 27 January 1998 which calls for
agreement on declarations, voluntary visits, non-challenge clarifying visits
and challenge investigations. He sees problems, however, in the US position on
voluntary visits, since they must be at the discretion of the facility
concerned.
Professor Pearson also refers to the EU's
emphasis on the need for rapid action under challenge investigations. He
remarks that the "difficulties of conducting investigations some time
after an alleged event were clearly shown in regard to the April 1997 Cuban
allegation that thrips palmi was dispersed from a US aircraft over
flying Cuba.
He also believes he can discern a
possible softening of the position of the non-aligned states on the matter of
scientific and technical exchange. These States seem now to be attaching more
importance to Article X of the Draft Convention "National Implementation
Measures", a heading that usually includes mandatory legislation.
The AHG will reconvene for two further
sessions to be held 22 June to 10 July, and from 21 September to 16 October in
an attempt to settle outstanding disagreements over the final protocol.
In the last issue of Compliance
Matters, we reported that the Government of Cuba had levelled allegations
at the U.S. claiming that the latter had willfully and deliberately
disseminated a biological agent over Cuban territory on 21 October 1996 in
contravention of the 1972 Biological Weapons Convention (BWC), to which both
countries are parties. Cuba claimed that a US crop-duster plane, while flying
over its territory, released a white substance from its fuselage. Two months
later on 18 December 1996, the presence of a plague known as thrips palmi
appeared at a local potato plantation in Matanzas Province in the area where
the plane had been seen.
In March 1997, Cuba became the first
country to make use of a new mechanism under the BWC for dealing with
complaints. This mechanism was established by consensus among all BWC parties
at the 1991 BWC Review Conference (UN Doc. BWC/C0NFIII/23, p. 15).
The rather meagre details of the 1991
mechanism are summarized in the previous issue of Compliance Matters.
Also summarized are the various steps that were taken by the States Parties in
response to Cuba's claim. The account given in the last issue brought matters
down to mid-October 1997; it told of a Consultative Meeting of States Parties
to the Convention at which 74 States Parties attended. The Consultative Meeting
elected a "Bureau" consisting of a chairman and six vice-chairmen,
including the Canadian representative, Mark Moher. (This body adopted the name
"Bureau" in its report; the previous issue of our newsletter referred
to it as a "Chair Group".)
Among developments occurring since our
last issue, the Bureau received twelve briefs from various States Parties,
including one from Canada. These were forwarded to Cuba and the U.S. with a request
for comments. The Bureau then met on 27 November 1997 to consider the twelve
briefs and the two comments, as a result of which the Bureau agreed by
consensus that the Chairman should issue a report to be sent to all States
Parties.
The two-and-a-half page report does not
contain a summary of the Cuban allegations nor of the U.S. responses. It does,
however, attach the complete text of these items and the twelve submissions
received from the various States Parties. It should be noted that the 1991 agreed
mechanism does not call for investigations, inspections or other procedures for
collecting data relevant to the complaint. The report, however, indicates that
some of the submissions received by the Bureau contain factual assertions.
The report states that, among the seven
members of the Bureau and the ten other countries submitting briefs, there were
some that concluded that there was no causal link between the over-flight of
the U.S. aircraft and the insect infestation, while there were other countries
that asserted that the lack of further detailed information made it impossible
to draw any definitive conclusions.
The report appears to have been issued as
a consensus document by the seven members of the Bureau. There is no
requirement for consensus in the 1991 mechanism, nor was it made a requirement
by the Consultative Meeting when it appointed the Bureau in August
(BWC/CONS/1). Indeed, the appointment of a body such as the Bureau was not
authorized by the 1991 mechanism. These considerations aside, the Chairman of
the Bureau was given authority to make a report by the Consultative Meeting in
August which stipulated that the report should go to the States Parties without
the necessity of assembling the Consultative Meeting again.
The report, dated 15 December 1997, was
signed by UK Ambassador Ian Soutar as Chairman of the Bureau. It reaches the
following conclusion:
On the basis of the above, I wish to
report to States Parties that, due inter alia to the technical
complexity of the subject and to the passage of time, it has not proved
possible to reach a definitive conclusion with regard to the concerns raised by
the Government of Cuba.
It will be noted that the report neither
confirms or dismisses the complaint. The Cuban representative made it clear that
"her Government continues to adhere to the suspicions which had given rise
to the original complaint."
It can be safely concluded that the 1991
mechanism failed to produce anything in the nature of an authoritative
evaluation of the complaint. The conclusion to be drawn from that fact is well
stated by the Bureau in its report:
The Bureau agreed that the experience of
conducting this process of consultation had shown the importance of
establishing as soon as possible an effective Protocol to strengthen the
Convention which is being negotiated in the Ad Hoc Group.
by Jonathan Matloff and Walter Dorn
Originally designed as a bilateral treaty
to prohibit defenses against long-range strategic missiles, the Anti-Ballistic
Missile (ABM) Treaty today is being characterized by some as obsolete and by
others as pointing to a new global regime.
As a disarmament treaty, the ABM Treaty
has always been an oddity. It was based on the theory that the development of
new defense-piercing strategic missiles could be effectively prevented by
outlawing the development of the defenses themselves. This was deemed a plus,
even though it meant that each side had no defense against the other side's
existing long-range missiles. This was rationalized on the basis that an
aggressor would always be deterred from attempting a nuclear knock-out blow by
the prospect of devastating retaliation effected by the other side's missiles.
The Treaty was dubbed by some as "mutual assured destruction (MAD)".
In the US, certain Republican senators
are arguing that the breakup of the Soviet Union in 1991 renders the basic
concept of the treaty invalid. The deterrent relationship upon which the treaty
is based, they say, no longer exists in the post Cold-war world. They argue
that the US could easily find itself threatened by long-range missiles and that
the Treaty is seriously hampering the development of defenses. The Clinton
Administration, however, views the treaty as being "at the center of our
strategic relationship with Russia today". The Administration recently
moved to update the Treaty both in relation to its substantive provisions and
in relation to the parties adhering to it. Last September, in New York, the
United States signed a Memorandum of Understanding on Succession (MOUS) which
"establishes that the parties to the ABM Treaty shall be the United
States, Belarus, Kazakhstan, the Russian Federation and Ukraine."
The new parties to the ABM Treaty, in
addition to signing the MOUS, signed another agreement which deals with the
substantive content of the treaty. It will differentiate between national
missile defense (NMD) and theatre missile defense (TMD) systems. Testing and
development of TMD systems, such as the Patriot and the Theatre High-Altitude Area
Defense (THAAD), will be deemed compliant with the ABM Treaty if they do not
exceed a velocity of 5 kilometres per second and a range of 3500 kilometres.
TMD systems differ from NMD systems in that they are designed to protect troops
in the field beyond the nation's borders, from the threat of short-range
missile attack.
Thus, while this agreement allows the
parties to continue to develop TMD systems, it makes no change to the ABM
Treaty's stringent limitations on the deployment of a strategic or national
missile defense. On the other hand, the argument has been heard that the
testing and development of TMD systems can be viewed as dual-use in the sense
that it might be possible for the technology to be adapted for use in defenses
against long-range missiles, in which case a loophole in the basic ABM Treaty
would be opened. This line of argument has thus far not prevailed at the policy
level in the US or Russia.
The MOUS stipulates that its entry into
force is "subject to ratification or approval by the signatory States in
accordance with the appropriate constitutional procedures in each State."
The same applies to the TMD clarification agreement. The Clinton Administration
has yet to submit these agreements to the Senate. It anticipates trouble, especially
from Republican Senators many of whom are deeply skeptical of the whole concept
of the original ABM Treaty and would be happy to kill it if presented with the
opportunity.
Apparently in an effort to sweeten the
pill for these Senators, the Administration is planning to package together the
two ABM protocols (the MOUS and the TMD clarification agreement) along with an
additional agreement which extends the implementation of START II to 2007. By
packaging the ABM and START II protocols as one piece of legislation, the
Administration hopes to persuade the Senate to accept the ABM amendments,
reasoning that the Senate will be less likely to vote down the ABM amendments
if that vote also means a derailment of the START II agenda.
The Administration expects that this plan
will have the added advantage of putting pressure on the Russian Duma to ratify
the START II Treaty. While the US Senate has already ratified START II, the
Russian Duma has delayed consideration of the Treaty until the fall. The
Clinton Administration wants START II to enter into force as soon as possible
in order to begin negotiations with the Russians on START III, which would
further deactivate strategic nuclear delivery vehicles and ICBMs. By waiting to
submit the agreements, the Administration is demonstrating to the Russians that
it is willing to update the ABM Treaty, but only if they move quickly on START
II.
The fate of the two ABM protocols will
depend in the first instance on the Russian Duma when it votes on the
ratification of START II, possibly in the fall of 1998. After ratification by
Russia, the fate of the two protocols will pass to the US Senate, where an
intense debate is expected over the future of the ABM Treaty itself and the
prospects of NMD. Finally, the ABM protocols must also be ratified by Belarus,
Kazakhstan and Ukraine.
Efforts are underway in several quarters
to persuade the Security Council to "close the file" on the aspect of
inspections that applies to nuclear weapons. If the Security Council were to
agree to such a move, the result would be that the current system, which
involves partly active inspections and partly passive monitoring, would be
converted to a system involving passive monitoring only. The UN documents refer
to the passive monitoring aspect of the system as "on-going monitoring and
verification" (OMV). The active inspections are expected to end at some
point, but not necessarily coinciding with the end of the sanctions. The OMV
system is expected to continue indefinitely until the Security Council decides
there is no longer a need for it.
The issue of whether the time has arrived
to advance to the OMV-only phase has already been raised in the Security
Council (S/PRST/1998/11) and is likely to come to the fore in October when the
Council receives its next regular report on the extent of Iraqi compliance with
its inspection obligations.
Since little has been published by way of
explanation of the OMV system, a few words on the matter would be appropriate.
The system is of particular interest to lawyers because it includes a provision
for mandatory legislation to be enacted by Iraq.
The OMV concept has its roots in the
cease-fire agreement that was concluded by the UN and Iraq at the close of the
Gulf War. That agreement was formulated in UN Security Council Resolution 687
(3 April 1991) which, agreed to by Iraq and was ratified by the Iraqi National
Assembly on 6 April 1991. It is this resolution/agreement that the UN Security
Council has been attempting to enforce against Iraq during the past 7 years.
Among other things, Resolution 687 calls
upon Iraq
·
to make full declarations as to its
weapons of mass destruction (nuclear, chemical, biological and long-range
missiles);
·
to submit to inspections for the purpose
of verifying the declarations;
·
to submit to the destruction, removal
or rendering harmless of all its weapons of mass destruction;
·
to undertake never to acquire such
weapons in the future;
·
to submit to a system of on-going
monitoring and verification for the purpose of verifying this undertaking.
Although Resolution 687 introduces the
concept of OMV, it contains no details; the parties are left to agree on
details at a later date (paragraphs 10, 12, and 13). The Security Council's
proposals as to the details of the OMV system were set out in Resolution 715
(11 October 1991). After much hesitation and remonstrance, Iraq finally agreed
to Resolution 715 by letter dated 26 November 1993 (UN Document S/26811).
Resolution 715 incorporates by reference
two documents, one setting forth details with respect to nuclear weapons and
the other dealing with the other types of weapons of mass destruction. The
document dealing with nuclear weapons (S/22872 Rev. 1) was prepared by IAEA
which is the body responsible for inspecting and monitoring in respect of
nuclear weapons. The other document (S/22871 Rev. 1) was prepared by the UN
Special Commission on Iraq (UNSCOM) which is the body responsible for
inspecting and monitoring in respect of the other prohibited weapons. Each
document contains arrangements intended to ensure compliance by Iraq with its
undertaking never to acquire the weapons in question.
Some of the more important features of
the OMV regime are:
a) on-site monitoring, including remotely-operated cameras and sensing
equipment;
b) detailed declarations by Iraq covering weapons-sensitive sites and
activities, to be used as a baseline for future inspections;
c) inspections any time any place to verify the completeness of Iraq's
lists of declared sites and activities, including unannounced short-notice
inspections;
d) aerial surveillance from UNSCOM's high-altitude aircraft and
UNSCOM's helicopters;
e) a requirement that Iraq enact legislation to ensure compliance with
its disarmament obligations under Resolution 687 and the OMV regime.
The term "passive monitoring"
has been used to refer to this regime, even though it allows for some obviously
active inspections. Indeed, Mohamed ElBaradei, the Director General of IAEA,
recently issued a statement entitled "Nuclear Verification in Iraq - Are
We Closing the File?" The general tenor of his statement was that IAEA may
be close to converting to the OMV-only arrangement, but this will not mean the
end of inspections. He explained matters in these words
It simply means shifting gears to ensure
not only that the past programme has been neutralized, but also that it is not
being revived. In the same vein, a future determination by the Security Council
that Iraq has satisfied the requirements for lifting the oil embargo would not bring
the monitoring and verification to an end.
In 1996, the UN Security Council added a
new feature to the OMV regime - a mechanism for monitoring Iraqi imports of
dual-use items such as computers and other items that can be used in civilian
applications as well as in the making of weapons. This feature will enter into
effect if and when the Security Council decides to relax that part of the
sanctions regime that prohibits countries from supplying dual-use commodities
to Iraq: Resolution 1051, para. 1; document No. S/1995/1017, para. 3. The
mechanism includes the following features
·
detailed reporting requirements on the
part of all supplier countries;
·
long detailed lists of dual-use items;
·
obligations on Iraq to cooperate by
maintaining records showing its disposal of imported dual-use items.
Resolution 715, along with the two
documents incorporated as part of it, entered into force in November 1993. The
two documents specified that the OMV system was to begin operating immediately
and to operate initially in tandem with the active inspections. The documents
also specify that the system is to continue in operation indefinitely until the
UN Security Council adopts a resolution to terminate it.
Before the transfer can be made to the
OMV-only system, Iraq must complete the portion of the requirements that apply
to it for putting the system into operation. Soon after delivering its letter
of acceptance, however, Iraq began obstructing the installation of monitoring
cameras and other aspects of the system. These problems have been partially
alleviated but resistance continues to occur in some areas, notably the
provision of full and accurate declarations and the enactment of legislation.
The OMV provisions requiring Iraq to
enact legislation are modeled on a provision in the Chemical Weapons Convention
(Article VII). The two documents referred to in Resolution 715 contain similar
provisions on this point. In the nuclear document, Iraq is required to
prohibit all natural and legal persons
under Iraq's jurisdiction or control from undertaking anywhere any activity
that is prohibited for Iraq by Resolution 687 or 707 or by the present plan.
Iraq shall enact penal legislation to secure enforcement of these prohibitions.
(S/22872 Rev. 1, para. 34)
A similar clause appears in the document
dealing with the other types of prohibited weapons (S/22871 Rev. 1, para. 20).
Iraq has been reluctant to enact this
legislation. Despite UNSCOM's repeated requests over a period of several years
and despite repeated promises by Iraq (e.g. S/1995/864, para. 93 and
S/1998/312, para. 24), no legislation enacted by the Iraqi National Assembly
has been submitted. Possibly some legislation can be expected soon under the
nuclear section of the OMV scheme, because Iraq is making special efforts to
satisfy the IAEA and the Security Council that the time has come in the nuclear
area to make the conversion to OMV-only inspections and monitoring. As of 30
June, however, IAEA officials stated that nothing had been received from Iraq.
Iraq's delays and reluctance in this
matter suggest that it is finding the idea of enacting the required legislation
to be problematical. There could be a number of explanations for this
reluctance, but there is one possible explanation that, if true, would be good
news for those attempting to improve compliance regimes for disarmament
treaties. The explanation could be that, contrary to what might be expected in
an authoritarian regime, Iraq is concerned about the possibility that the
legislation might some day be actually enforced against a government official.
If there is any validity in this explanation, it could mean that
treaty-mandated legislation (à la CWC) in authoritarian countries will be found
to be more effective for promoting compliance than might otherwise be thought.
If and when the Iraqis eventually submit their legislation, it may be found to
contain some clues as to the validity of this explanation.
Economic Sanctions: Panacea or
Peacebuilding in a Post-cold War World?
David Cortright and George A. Lopez (eds.)
Westview Press, 1995, Boulder, Colorado
231 pp., with index and bibliography review by Britt Elliott
Over the last several years, we have sen
a flurry of sanctions activity within the United Nations system. For the first
forty-five years of its existence, the UN Security Council imposed sanctions
only twice. Since 1990, however, it has imposed sanctions ten times, including
three cases of comprehensive economic sanctions against Iraq, former Yugoslavia
and Haiti.
Despite all this, there have been
surprisingly few attempts to address fundamental questions over the value and
purpose of sanctions: Are sanctions effective? Are they humane? More precisely,
what are the components of a sanctions regime that is effective, enforceable,
and which complies with fundamental humanitarian norms? These questions are
addressed head-on in Economic Sanctions: Panacea or Peacebuilding in a
Post-Cold War World? edited by disarmament activist David Cortright and
Professor George A. Lopez. Bringing together the work of policymakers,
political scientists, economists, legal theorists and theologians, the book
looks at some of the most pressing questions surrounding the use of sanctions.
The first part of the book includes three
essays which examine sanctions from international and national perspectives. Of
particular interest is an essay by James Ngobi, secretary of the United Nations
Sanctions Committees. Ngobi's essay provides an overview of the UN sanctions
program and identifies a number of shortcomings within the existing system.
since the Security Council has yet to agree on an effective mechanism for
administering the national implementation of sanctions, countries are prone to
allow overt sanctions violations simply out of national pride or concern about
internal political repercussions, while others engage in deliberate concealment.
Part Two examines some of the problems
and controversies surrounding sanctions. An obvious questions arises: Do
sanctions work? Kimberly Ann Elliott offers a preliminary framework for
evaluating whether or not a particular sanctions program has been effective,
and then lays out some factors that affect the success of sanctions. Elliott
makes it clear that nowadays sanctions must involve many actors in order to be
effective. Ironically, however, Elliott's essay discusses sanctions almost
exclusively as a tool of US foreign policy. The author says very little about
the effectiveness of UN instruments, which presumably would be the main vehicle
for imposing the kinds of sanctions she appears to be advocating.
An essay by Christopher Joyner examines
sanctions from the point of view of international law. Like Ngobi, Joyner
points to some difficulties of monitoring and enforcing compliance with
sanctions. In particular, he draws attention to the system's reliance on states
to investigate and report on violations within their own country. Joyner also
underscores the need to provide assistance to countries who participate in
sanctions but are particularly harmed by the disruption in trade with the
sanctioned country. Regrettably, the author gives only scant attention to
Article 50 of the UN Charter, which entitles countries suffering from these
problems to consult the Security Council for a solution. Some comment on the
effectiveness of this instrument would have been useful.
Two exceptional essays look beyond
questions of efficacy and examine the morality of sanctions. Jack Patterson of
the American Friends Service Committee lays down some basic criteria for a
sanctions system that meets basic humanitarian requirements. Drew Christianson
and Gerard Powers (both of the US Catholic Conference) borrow some concepts
from "just war" theory to provide a moral framework for evaluating
sanctions.
Part Three offers case studies of
multilateral sanctions in four countries: Iraq, Former Yugoslavis, Haiti and
South Africa. Although the results are often depressing, they are also
instructive. David Reuter, a US Defense Department official, argues that the
sanctions on Iraq have been effective, while Bashir Al-Samarrai counters that
sanctions have devastated innocent civilians, but have failed to loosen Saddam
Hussein's grip on Iraq. In Haiti, Claudette Antoine Werleigh argues that
sanctions were imposed incrementally and half-heartedly, and were not enforced
in any serious way until near the end of the crisis in 1994.
One happy exception is found in the case
of South Africa. Jennifer Davis of the American Committee on Africa explains
how citizens, governments and civil society worked together to help South
African groups bring down the apartheid system. This cooperative effort
contrasts starkly with the results in Yugoslavia, where it is said that
sanctions provoked a backlash among Serbs. The essays by Susan Woodward and
Sonja Licht both suggest that economic and political isolation caused Serbian
nationalists to rally around Milosevic, and squeezed moderate and dissident
voices out of the political debate entirely.
The final section of the book looks at
how the current sanctions regime might be strengthened. Lloyd (Jeff) Durnas
calls for the establishment of a UN Council on Economic Sanctions and
Peacekeeping as an independent monitoring mechanism. Such an instrument would
help overcome a current shortcoming of the existing UN sanctions regime, the
reliance on states to monitor their own compliance. Cortright and Lopez propose
that future policy makes explore the use of humane alternatives, such as
"positive sanctions". An example of such an approach is a European
Bank for Reconstruction and Development's 1993 "debt for
denuclearization" program, which proposed that Ukraine and other former
Soviet Republics receive debt forgiveness and other incentives in exchange for
a commitment to nuclear nonproliferation.
The contributions to this volume come from a wide range of disciplines, and with few exceptions, they are easily accessible to the non-specialist. The essays often tilt the debate toward American foreign policy, which can constrain the debate at times( of the seventeen contributions to this book, only five are based outside the United States). Some of the authors show a tendency to underrate the effectiveness of sanctions imposed by the UN Security Council. Particularly welcome, however, are the contributions by Ngobi and Durnas, both of which offer some thoughtful suggestions for improving the effectiveness of UN sanctions machinery. Despite its limitations, this collection of essays is a highly welcome addition to the relatively sparse body of literature on sanctions.