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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. 25, No. 1, Winter-Spring 1999. The version that follows has been
slightly edited since it first appeared in the Bulletin.
I. Nuclear Disarmament In Iraq
II. Article Review – T.V. Paul: Coercive Sanctions
III. Article Review – Alan Dowty: Sanctioning Iraq
IV. Sanctions Improvement: Activity At
The UN
VI. Gaps In The Law Relating To Chemical
And Biological Weapons
In a
recent issue Arms Control Today (October 1998), David Albright and
Khidir Hamza write about Iraq's ’Reconstitution of Its Nuclear
WeaponsProgram. Both authors are well qualified to write about the subject.
Mr. Albright is the president of the Institute for Science and International
Security (ISIS) in Washington, DC and the author of several books and articles
on nuclear weapons. Khidir Hamza is a former Iraqi nuclear weapons scientist
and a senior fellow at ISIS. The following note on their article was submitted
to Compliance Matters by Pacifique Manirakiza, a masters student in
international law at the University of Ottawa:
Although
Iraq became a party to the Nuclear Non-Proliferation Treaty (NPT) in 1968, it
has been developing a nuclear weapons program since the 1970s. Iraq continues
to develop its nuclear weapons program through the acquisition, from overseas
sources, of nuclear materials and facilities. In addition, Iraq’s elite in the
field of nuclear weapons receives training from foreign instructors.
Nevertheless,
since the Gulf War, Iraq has encountered extreme difficulties in making
progress in building nuclear weapons. A large proportion of Iraq’s nuclear
equipment and materials was destroyed through allied bombing during the Gulf War.
Following the War, most of the remainder has been destroyed under the
supervision of the IAEA Action Team, which operates under a UN mandate similar
to that given to UNSCOM. Additionally, the UN embargo on the importation of
essential nuclear components has seriously hampered the development of Iraq’s
nuclear weapons program.
Despite
the large-scale destruction of facilities and materials and the ongoing
presence of inspection teams, suspicion regarding Iraq’s capacity to construct
nuclear weapons remain. One of the main signs or reasons for concern regarding
a possible revival of Iraqi’s nuclear weapons program is based on the existence
of a cadre of highly qualified and experienced nuclear scientists. Since the
end of the Gulf War, these elite nuclear teams have been kept together, through
force and intimidation, to conduct theoretical design work and small-scale
research and development. Despite the inception and presence of inspection
teams, design and research activities have been carried on in a wide range of
proscribed areas. When interviewed by the inspectors, these scientists have
revealed almost nothing regarding their work.
In
order to address the problems outlined above, the following measures are
strongly recommended:
·
The
IAEA inspectors should be more vigilant.
·
The
OMV system should be improved.
·
The
arrangements for detecting and controlling illicit imports into Iraq should be
strengthened; particularly important since Iraq depends on foreign countries, especially
the former Soviet Union, for the procurement of essential nuclear weapons
materials.
·
Arrangements
should be made for the settlement of key scientists and their families in safe
countries, where they can be protected from retaliation; this would deprive
Iraq of important assets in its weaponization projects and devastate Iraqi
ability to rebuild its nuclear weapons programs.
T.V. Paul
International Journal, Summer 1996
Reviewed by Sandra Wilder*
The
effectiveness of coercive sanctions is of particular relevance to observers of
NPT compliance. As an associate professor of political science at McGill
University, T.V. Paul published an article, which outlined several facets of
the use of sanctions. These included the conditions under which economic and
military actions might be useful, the varying degrees of success and failure
such actions have achieved in the past, and the role of the United Nations and
the international community as a whole in upholding the decision to impose
sanctions on a state which is threatening to produce nuclear weapons. However,
Paul’s prime example to prove the validity of sanctions — the decimation of
Iraq’s ability to produce nuclear arms following the Gulf War — has lost its
credibility given the obstructions met by UN weapons inspectors and the
bilateral decision to take military action against the regime. Paul’s central
argument that the merits of coercive sanctions could be gauged using Iraq as a
shining example is consequently drawn into question.
Alan Dowty “Sanctioning Iraq:
The Limits of the New World Order”
The
Washington Quarterly, Summer 1994. Vol.17, No.3, 179-198.
Reviewed by Julie Salgado*
Alan
Dowty is a Professor of Government and International Studies at the University
of Notre Dame and a Fellow at the Kroc Institute for International Peace. Dowty
reflects upon lessons learned from the international sanctions placed on Iraq,
with support from the major world powers. Before the Gulf War the UN sanctions
had no success in achieving their stated purpose to secure the withdrawal of
Iraqi forces from Kuwait — this despite considerable economic impact. After the
war, the effectiveness of the sanctions weakened, as redirection efforts began
to thrive, Iraqi nationalism strengthened, and the population majority
continued to suffer. Although Iraq signed the Nuclear Non-Proliferation Treaty,
its ability to anticipate and evade UNSCOM and IAEA inspections indicates that
a hidden nuclear weapons industry may exist. Economic sanctions and inspections
may delay nuclear development, but it is not enough. Ongoing threat and the
occasional use of force are necessary, but will also not guarantee success. The
article outlines several findings discussed at the conference on "Economic
Sanctions and International Relations" in April 1993, which were confirmed
by the Iraqi case. Ultimately, limitations to international sanctions exist and
the elimination of weapons of mass destruction is not completely guaranteed,
even when "based on overwhelming international consensus, and backed by
the potential use of military force."
Largely
ignored by the media and by expert commentators, a committee of the UN General
Assembly is discussing a working paper entitled: "Basic Conditions and
Criteria for the Introduction of Sanctions and Other Coercive Measures and
Their Implementation." The working paper was submitted originally by the
Russian Federation and includes the following among its provisions:
I.3 The
application of sanctions is permissible only in the event of a real,
objectively verified and factually established threat to international peace or
a breach of the peace, and this refers specifically to international peace, not
peace between communities, clans or groups.
I.3 Sanctions
must …pursue clearly defined purposes, have a time frame, be subject to regular
review and provide for clearly stipulated conditions for lifting them, and the
lifting of them must not be linked to the situation in neighbouring countries.
II …
special attention should be paid to the "humanitarian limits" of
sanctions…
II.3 The
creation of a situation in which sanctions would cause excessive suffering to
the civilian population, especially its most vulnerable sectors, is not
permissible.
The committee that is considering the
working paper, known as the Charter Committee, is open to all UN members and
operates on the basis of consensus; its next meeting is scheduled for 12-23
April 1999.
More information about the Working Paper
will be included in the next issue of Compliance Matters. In the
meantime, readers may wish to look at two documents: 1) the General Assembly
resolution dealing with the matter: A/Res/53/106, paras. 3, 4 (a); and 2) the
Committee report which contain the text of the Working Paper and a summary of
the Committee discussions: UN Doc. A/53/33, paras. 35-72. — DS
The
Markland Group attempts to monitor open sources for information on activities
of States Parties that might indicate a breach of treaty obligations or some
other compliance problem.
Alleged
Violations of Security Council Sanctions
On 22 February,
the Washington Times reported that several Russian companies had been selling
missiles and other military equipment to Iraq. The sales are alleged to
include, in addition to missiles, MiG 29 fighter planes. The Russian government
has vehemently denied the story.
If
true, the story would mean that Russia had repeatedly violated its obligation
under the UN Charter to comply with directives of the Security Council, in this
case paragraph 24 of Resolution 687 (8 April 1991) reading as follows:
[The Security
Council] decides that, in accordance with resolution 661 (1990) and subsequent
related resolutions and until a further decision is taken by the Security
Council, all States shall continue to prevent the sale or supply, or the
promotion or facilitation of such sale or supply, to Iraq by their nationals,
or from their territories or using their flag vessels or aircraft, of:
a) Arms and related material of all
types, specifically including the sale or transfer through other means of all
forms of conventional military equipment.
On 5
March, a US State Department Press Officer stated that the US government had
raised the matter with the Russian government saying that it had read the press
reports, and if true, the US would take the matter very seriously, but "we
have no information that would confirm the contents of these reports."
Subsequently, the author of the Washington Times story Jamie Deppner contacted
the US Department of Defence and was told by an official speaking on the basis
of anonymity that the Department now had evidence that the report was
substantially correct.
On 8
March, a similar story surfaced in The London Times, this time implicating
Syria. According to Michael Evans, the Defence Editor of The Times, a secret
deal has been made for Syria to supply Iraq with spare parts for its depleted
armaments. Included are engines for tanks, tracks for armoured vehicles, parts
for aircraft and helicopters, as well as ammunition.
Neither
of these stories carries any detail on where Iraq intends to find the money to
pay the price. — DS
The new
Statute of the International Criminal Court, which is focussed on the
activities of individuals rather than states, contains a long list of
activities that are defined as crimes. The list is drawn in such a way as to
leave significant gaps in relation to activities involving chemical weapons and
biological weapons. For instance, it is doubtful if the Statute could be used
against terrorists or individuals involved in developing, producing or
stockpiling these weapons.
In the
case of chemical weapons, these gaps in global law are partially filled by
Article VII of the Chemical Weapons Convention which requires States Parties to
enact penal legislation targeted on individuals; but the legislation is
required to apply only to acts committed on the territory of the State in
question and acts committed elsewhere by its nationals; the legislation is not
required to provide for the prosecution or extradition of non-nationals abiding
within the State who are suspected of having committed an offence outside the
territory of the state. Nor does the CWC provide for legislation requiring the
State Party to render assistance to other State Parties in connection with their
efforts to investigate suspicious activities or to take criminal or extradition
proceedings.
The
gaps in the law are even more evident in the case of the Biological Weapons
Convention and the new Convention for the Suppression of Terrorist Bombings.
Although they also contain provisions requiring the enactment of legislation
targeted on individuals, the provisions are considerably looser than those in
the CWC are.
The
Harvard Sussex program (under the direction of Matthew Meselson and Julian
Perry Robinson) argues that better legal instruments are needed in order to
target terrorists, rebel groups, suppliers, state officials and military
personnel involved in the development, production, stockpiling, transfer or use
of chemical and biological weapons. In an effort to deal with the gaps in the
existing law, the HSP is promoting the adoption of a new treaty. With the
assistance of a team of legal and other experts, the HSP has recently published
a detailed draft convention on the matter. In the words of the HSP, the
proposed convention would require each State Party to enact laws that would:
"make
it an offence for any person, regardless of official position, to order, direct
or knowingly participate or render substantial assistance in the development,
production, acquisition, stockpiling, retention, transfer or use of biological
or chemical weapons or to threaten the use of such weapons or to create or
retain facilities intended for the production of such weapons. When the
convention enters into force, any person who commits any of the prohibited acts
anywhere in the world would face the risk of apprehension, prosecution and
punishment or extradition should that person be found in a state that supports
the proposed convention."
The
text of the proposed convention appears in the current issue of THE CBW
CONVENTIONS BULLETIN, Issue No. 42, December 1998 (the Quarterly Journal of
the HSP on CBW Armament and Arms Limitations). The working group responsible
for preparing the draft convention was composed as follows: James Crawford
(Cambridge University), John Dugard (Leiden University), Philip Heymann
(Harvard University), Matthew Meselson (HSP Director) and Julian Perry Robinson
(HSP Director).
The
Markland Group would be happy to forward a copy of the draft convention to
anyone interested — DS.
Monitoring
Compliance under the Most Widely Ratified UN Convention in History
by Mark
Erik Hecht*
*Mark
Erik Hecht is a lawyer and is currently Deputy Director of Human Rights
Internet, an international human rights NGO located in Ottawa.
The
Convention on the Rights of the Child (CRC) is the most widely signed and
ratified United Nations instrument to date. Currently, all UN member States,
and many non-member States, have signed onto the document. Only the United
States has yet to ratify it. By adopting the CRC, a State Party agrees to
implement the provisions within its country or territory. It also undertakes to
monitor and report on the status of the CRC within its borders (e.g., article
44). For monitoring, apart from the task of issuing conforming legislation, a
prominent role must also be played by the courts to recognize the CRC’s
self-executive provisions (e.g., article 12).
The matter
of compliance is managed in the CRC in a very different form from what exists
in disarmament treaties, such as the Chemical Weapons Convention (CWC). Instead
of sanctions and other confrontational measures, the drafters of the CRC
preferred to have the maximum number of State Parties committed to the
principles, after which compliance would be handled through mutual aid,
assistance, co-operation, and global persuasion. Frequently, a country will
elect not to sign and/or ratify an international instrument for fear of being
confronted when unable to apply its provisions. Under the CRC, State Parties
can openly admit in their reports that they have failed to meet the obligations
that they had agreed to upon signing, as long as they also request technical
advice and assistance to enable them to complete their commitments (e.g.,
article 45). Unlike the mechanisms of most disarmament treaties, no State Party
can lodge a complaint against another State Party alleging non-compliance. Nor
is there provision for taking disputes to the CRC’s administering organization
or the International Court of Justice.
Instead
of an administering organization of the type found in the CWC, the CRC creates
an entity known as the Committee on the Rights of the Child which is composed
of ten independent experts. There are no inspectors who visit the State
Parties, although the Commission of Human Rights does allow Special Rapporteurs
to enter a country upon invitation. A State Party must submit its initial
report within two years after ratification and thereafter every five years.
Once a report is complete, the CRC requires the Party to make it readily
available to the public (e.g., article 42 and 44). Unlike most other
international instruments, the CRC invites constructive criticism of
governments by providing to civil society organizations the opportunity to
contradict or supplement the official State Party report and offer additional
information to the Committee on the Rights of the Child.
Overall,
however, the international children’s rights community would agree that the
condition of the world’s children has improved since the adoption of the CRC.
On the other hand, it should be noted that there are a number of other factors
that may explain this improvement, including development projects that improve
sanitation and fewer civil wars.