CIAO DATE: 02/02

Ways to Improve the Implementation and Enforcement of Arms Control Agreements — Role of Verification

Jozef Goldblat
Vice-President, GIPRI

1999 - 2000

The Geneva Centre for Security Policy (GCSP)

It is generally assumed that states enter international treaties in good faith, that is, with intention to abide by their commitments. Nevertheless, the signatories usually check whether the contracted obligations are being observed, and when vital matters, such as national security, are involved, they need special assurances. The possibility to verify compliance is, therefore, an important requirement to be taken into account when states decide whether to conclude or accede to an arms control agreement.

The form and modalities of verification depend upon the nature, scope and military significance of the agreed constraints, but the main role of verification is the same: to deter cheating. A government contemplating a violation may refrain from committing it, if it fears detection, which may be followed by a vigorous response from the cheated state or states and perhaps even provoke a very negative reaction in its own country. Deterrence of violations presupposes, of course, the ability to detect them. Timely detection is vital to enable the injured party to redress the situation, especially in cases constituting an immediate military threat.

Verification also has confidence-building functions. By providing evidence that the parties are fulfilling their obligations, and by confirming that the prohibited activities are not taking place, verification helps to generate an international belief in the viability of the arms control measures and instill trust in participating states that their interests are protected. In addition, the existence of a verification mechanism makes it easier for a party unjustly accused of a breach to demonstrate its innocence. Charges which have not been disproved and misunderstandings which have not been clarified may negatively affect the international climate, weakening confidence in treaties and casting a shadow on arms control endeavours.

It is usually postulated that verification must be adequate, appropriate, or effective. The meanings attached to these terms differ. Most people take the view that there will always be a limit to detecting violations, but that the threshold should be low enough to make the significance of undetected breaches negligible. The reasoning behind this pragmatic approach is that what matters most is not the fact of non-compliance but the effect of non-compliance; and that, to make a significant difference altering the military balance between states, cheating would have to be practiced on such a scale as to render detection inescapable. Others consider any deviation from the contracted obligations to be an offence that cannot be tolerated, regardless of its military significance, and insist on total verifiability. The reasoning behind this legalistic approach is that the principle pacta sunt servanda (contracts should be adhered to) must be observed unconditionally, even at the risk that disputes over trivial matters might undermine the treaty. Since fool-proof verification of a treaty is not achievable, and since complete absence of violation can never be proved, only the first of the two approaches makes the conclusion of an arms control agreement possible. The parties must be prepared to take risks and judge whether the threat posed by undetected violations is greater than that posed by unconstrained military activity. In other words, each party must decide for itself how much cheating it could tolerate - the degree of tolerable uncertainty being a judgment made by state authorities, based on the impact which a violation could have on national security.

Responses to violations

However well-intentioned governments are at the time of signing an arms control agreement, they may at a later stage change their mind and be unable to resist temptations to acquire clandestinely the weapons they have renounced, or to engage in other outlawed activities. The more comprehensive the restraints provided for in the agreement, the greater could be the incentive to cheat. A government determined to derive military advantages from non-compliance may take the risk that its felony would be detected through verification and disregard the consequences. Once a breach has been established, it is up to the cheated party or parties to react.

Responses may differ depending on the extent to which a breach is considered serious by those affected by it. They may range from deliberately overlooking certain occurrences for overriding political or security reasons (for example, the unwillingnes to reveal the source of information) to abrogation of the treaty followed by some punitive action. Between these extremes there exists a possibility of using diplomacy to effect a change in the behaviour of the guilty party. In some cases this has proved useful.

Many multilateral arms control treaties provide for formal notification of a suspected or committed violation to the United Nations and/or another international organization, thus making the event public. As no government likes to be pilloried as a violator of legal obligations, publicity may be helpful as an instrument of sanction, especially in democratic countries which are sensitive to public disapproval. A reported violation may lead some states to take such action as the recall of ambassadors, the reduction of embassy staffs, and even the severance of diplomatic relations. International organizations may pass condemnatory resolutions. However, to make the violating state rectify its behaviour, stronger measures of enforcement may be needed.

UN action in response to violations

After a competent body has made a definitive finding that a state has violated an arms control agreement, the UN Security Council may, if so requested, consider the matter. The Council is not authorized by the UN Charter to take action against violators of arms control agreements ₁ , but if it finds that the situation brought about by the violation could lead to international friction it may, under Chapter VI of the Charter, recommend to the state or states concerned "appropriate procedures or methods of adjustment". The Council may also decide that a specific violation, or a certain type of violation constitutes a "threat to the peace". It could then, under Chapter VII of the UN Charter, call on UN members to apply sanctions - complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication. It could also recommend to the UN General Assembly the suspension of the rights and privileges of UN membership or even expulsion from the Organization. Finally, the Council may decide that military sanctions should be taken, including demonstrations, blockade, and other operations by the air, sea or land forces of UN members. Thus, in a formal sense, the Council possesses the means necessary to restore international peace which has been broken as a result of arms control violations. The determination to resort to these means was expressed in the 1992 statement by the President of the Security Council, on behalf of the members of the Council, to the effect that proliferation of weapons of mass destruction would constitute a threat to international peace and security, and that appropriate action would be taken to prevent it ₂ . Significantly, such action would affect all states breaking the rule of non-proliferation - not only parties to the relevant agreements - even though the ban on proliferation of either nuclear, or chemical, or biological weapons is not yet a rule of customary international law binding on all states alike. However, a statement by the President of the Security Council does not have a binding legal effect. To have such effect, it would need to be converted into a formal decision of the Council. Also the term "proliferation", which lends itself to different interpretations, would have to be unambiguously defined. Only then would the Council be entitled to take coercive measures against the violators of the non-proliferation norms.

In practice, it is difficult to obtain agreement on the application of drastic measures from the UN members not directly concerned. Even with the requisite two-thirds majority, the Council may prove unable to act, if any one of its permanent members decides to exercise the right of veto - as specified in the UN Charter - to protect its own interests or the interests of its allies, or if it is opposed to the treaty in question. The problem of reconciling the right of veto with the proper functioning of treaties restricting armaments was recognized as early as in 1946, when the United States put forward the Baruch Plan for the creation of an international atomic development authority. At that time, the US government stressed the importance of immediate punishment for infringements, maintaining that there must be no veto to protect violators of international agreements - a proposition that the Soviet Union categorically rejected ₃ .

In connection with several arms control agreements, the UN Security Council has been granted functions which have the appearances of sanctions. Thus, according to Security Council Resolutions 255 of 1968 and 984 of 1995, parties to the nuclear Non-Proliferation Treaty (NPT) received a pledge of assistance (technical, medical, scientific or humanitarian), in the event they were aggressed or threatened to be aggressed with nuclear weapons. Under the 1972 Biological Weapons Convention (BW Convention) and the 1977 Convention prohibiting the hostile use of environmental modification techniques (ENMOD Convention), states have undertaken to provide or support assistance to any requesting party if the UN Security Council determines that such party has been harmed (or is likely to be harmed) or exposed to danger as a result of a violation. These assurances simply reaffirm the existing obligation of the United Nations to provide assistance to a country attacked or threatened with an attack, whatever the weapon used.

The 1993 Chemical Weapons Convention (CW Convention) and the 1996 Comprehensive Test Ban Treaty (CTBT) go somewhat further in enforcing compliance. They stipulate that some (but not specified) collective measures may be taken by the parties without reference to the UN Security Council, if one of them engages in prohibited activities which can damage the object and purposes of the agreements. Urgent cases of non-compliance with the CW Convention or the CTBT may be brought to the attention of the United Nations, if the required majority of parties decides to do so. However, the relevant provisions of the UN Charter would then apply (as they also would in the case of the BW Convention and the ENMOD Convention), and these provisions, as pointed out above, may prove inoperative. It is true that Iraq, which had committed a material breach of the NPT, was forced under the 1991 Security Council Resolutions 687 and 715 to dismantle or destroy the key elements of its nuclear weapon development programme. However, these sanctions were imposed not because of the breach of the NPT, but because of Iraq's aggression against Kuwait in violation of the UN Charter.

The General Assembly is another principal organ of the United Nations, to which complaints of treaty violations can be addressed. Its actions are not subject to veto; only a two-thirds majority is required for a recommendation concerning international peace and security. However, with the present composition of the Assembly of nearly 190 states, obtaining such a majority may not be easy. And even when it is duly adopted, a resolution of the Assembly - unlike a decision of the Security Council - is not binding on UN members.

IAEA action in response to violations

Another inter-governmental organization capable of dealing with breaches of arms control obligations is the International Atomic Energy Agency (IAEA). As envisaged in Article XII of its Statute, cases of non-compliance with nuclear safeguards agreements are to be reported to the UN Security Council and the General Assembly. If corrective action is not taken within a reasonable time, the IAEA Board of Governors may direct curtailment or suspension of assistance provided by the Agency or a member-state, and call for the return of materials and equipment made available to the transgressing member. A non-complying state may also be suspended from exercising the privileges and rights of IAEA membership. Since no country enjoys the right of veto in the IAEA Board of Governors, adoption of decisions to apply such sanctions cannot be ruled out, but their effectiveness is doubtful.

The IAEA provides very little direct assistance to states - and, certainly, not for their nuclear power programmes. As regards possible curtailment of assistance provided by states, such a decision may be adopted by the Board, but it is not as unambiguously mandatory under the IAEA Statute as are decisions of the UN Security Council. Even if all the deliveries of nuclear items were actually cut off to penalize the offending state, that state might not feel significantly disadvantaged in a world where no country is exclusively dependent on nuclear power and where nuclear supply exceeds demand. Withdrawal of materials and equipment already supplied is not a realistic measure, because it would require voluntary co-operation of the state being penalized, which is unlikely. Moreover, return of nuclear supplies may be both exceedingly expensive and dangerous, and the supplier may be unwilling to take them back. Suspension of IAEA membership does not seem to be an effective measure either. In concrete terms, it would involve: withdrawing the right to receive Agency assistance which, as explained above, is not an important sanction; barring access to information possessed by the Agency, which is available to non-members as well; and exclusion from Agency meetings, which cannot be particularly hurtful. Expulsion from the Agency is not provided for. The weakness of the IAEA enforcement mechanism has been best illustrated by the case of North Korea, which refused international inspection of certain suspect facilities without provoking immediate and effective sanctions.

Other collective action in response to violations

Collective sanctions against a violator of a multilateral agreement may be taken also in the absence of an enforcement provision. Such sanctions, when applied, are usually related to the nature of the particular offence. Thus, in the 1970s, the breach by India of its undertaking under international co-operation agreements to use nuclear energy exclusively for peaceful purposes prompted a number of countries to restrict their supplies of nuclear materials and equipment to India ₄ . Iraq's use of chemical weapons against Iran, in violation of the 1925 Geneva Protocol, went unpunished, but, even before the 1991 Gulf War, certain industrialized states decided to ban exports to Iraq of chemicals which could be used in the manufacture of chemical warfare agents ₅ . However, to produce the desired effect, "in-kind" sanctions would have to be complemented by such measures as cancellation of economic assistance, imposition of trade restrictions, and even suspension or termination of vitally needed supplies unrelated to the breach.

Abrogation of the treaty in response to violations

All major arms control agreements contain a clause permitting a party to withdraw from the agreement, if it decides that extraordinary events have jeopardized its supreme interests. Violation could be considered as an "extraordinary" event justifying withdrawal, and the requirement to give advance notification and to explain the reasons would not prevent states from taking this step. But even in the absence of a withdrawal clause, a material breach of a treaty by one party makes it possible for another party to denounce the agreement in accordance with general international law.

In bilateral relations, the threat of abrogation is the primary means of enforcing a treaty, for it may deprive the violating nation of the advantages it has gained from entering it. Alternatively, the party injured by a violation may respond by taking the same prohibited action as the offender, without repudiating the agreement as a whole. Such a tit-for-tat interplay - which would be equivalent to informally modifying the terms of the treaty - is conceivable only as long as the main purpose of the treaty has not been perverted. In multilateral relations, abrogation or retaliation with a similar violation could lead to the collapse of the treaty to the detriment of the complying parties.

Proposed approaches

The traditional responses to established violations encounter a number of obstacles which are difficult to overcome. Removing these obstacles would require, among other things, radical changes in the structure and working of the main organs of the United Nations as well as of other international organizations. In particular, the force of the UN General Assembly resolutions would have to be enhanced, the Security Council permanent members veto would have to be restricted or ended, and the prerogatives of the executive bodies of the arms control implementing organizations would have to be widened and their decisions made mandatory. Such changes, the implications of which would go well beyond the issue of arms control, would certainly be regarded by many states as politically undesirable and, therefore, not feasible in the foreseeable future.

If a response to a violation of a multilateral obligation is to be effective, all or most parties must act in solidarity with the state or states hurt by the violation. However, solidary action is not always possible, mainly because many countries are opposed to applying sanctions that have not been decided upon by competent international bodies. If collective enforcement measures against a culprit state were to be applied without the requirement that an international decision must be taken in each individual case, such measures would have to be formally agreed in advance.

In devising possible responses, a distinction must be made between different types of violation. Violations can vary from technical to material breaches, that is, from inaccurate or incomplete reporting to non-observance of procedural clauses, to offences resulting from misunderstanding, to violations of provisions essential to the accomplishment of the object or purpose of the treaty, including obstruction of the control system. Violations can be committed by governmental authorities, by non-governmental institutions or even by individuals (with or without the consent or knowledge of the authorities). Further differentiation is necessary between intentional and unintentional breaches; the latter - usually easier to remedy - may result from sheer negligence. Some breaches may be reversible, others may not be.

The most appropriate approach would be to make responses to possible violations part and parcel of the complex of obligations contracted by the parties. The agreed responses, different for different treaties, but proportionate to the offences, could be listed in the treaty itself, or in a protocol attached to it, or in a protocol added to the treaty already in force. They might include the measures mentioned in the preceding sections, with the exception of the use of force. Military sanctions may be decided solely by the UN Security Council.

The responses would have to be graduated from mild to severe, so as to increase pressure on the violator over time and force him finally to mend his ways. The conditions for transition from one response to another would have to be clearly spelled out. The mere existence of a list of predetermined sanctions could fulfill the function of deterrence and reduce the probability of violation. A government declining to react to violations and abstaining from efforts to uphold the validity of an arms control agreement would be in breach of its treaty obligation and would expose itself to both international and domestic criticism.

It is obvious that compliance cannot be ensured by sanctions alone, and that the stronger and the richer the country, the easier it may be for it to withstand outside pressure. Nonetheless, it is essential that violations of arms control treaties should not be ignored, and that no country, large or small, developed or undeveloped, should be immune from deserved penalties. The general public tends to equate arms control violations with immediate threats to national security. Reactions to violations should, therefore, be predictable. Violators must apprehend detection.

 

__________________________

Notes:

Note 1: According to the Charter, it is responsible only for formulating plans to be submitted to the Members of the United Nations "for the establishment of a system for the regulation of armaments". Back.

Note 2: UN Security Council document S/PV.3046 Back.

Note 3: See, J. Goldblat, Arms Control: A Guide to Negotiations and Agreements, PRIO and SAGE Publications, 1994, pp. 30-32. Back.

Note 4: Subsequently, a group of nuclear suppliers, forming the so-called London Club, adopted a set of principles for nuclear safeguards and export controls. Back.

Note 5: More generalized export restrictions have been imposed by a group of exporting countries, which became known as the Australia Group, to prevent the spread of chemical and biological weapons. Back.