Pursuing Compliance with WMD Treaties: Getting from Patchy to Perfect
Canadian Centre for Treaty Compliance
The Norman Paterson School of International Affairs
Prepared for the International Security Research and Outreach Programme International Security Bureau
The International Security Research and Outreach Programme (ISROP) is located within the Continental Defence Relations Division of the International Security Bureau. ISROP's mandate is to provide the Department of Foreign Affairs and International Trade (DFAIT) with timely, high quality policy relevant research that will inform and support the development of Canada's international security policy in the areas of North American, regional and multilateral security and defence cooperation, non-proliferation (nuclear and non-nuclear), arms control and disarmament. The current ISROP research themes can be found at : www.international.gc.ca/arms-armes/isrop-prisi/index.aspx.
ISROP regularly commissions research to support Canadian officials by drawing on its think-tank and academic networks in Canada and abroad. The following report "Pursuing Compliance with WMD Treaties: Getting from Patchy to Perfect" is an example of such contract research.
DFAIT wishes to acknowledge the work performed under contract by: Canadian Centre on Treaty Compliance.
Disclaimer: The views and positions expressed in this report are solely those of the author and do not necessarily reflect the views of the Department of Foreign Affairs and International Trade or the Government of Canada. The report is in its original language.
Table of Contents
The Canadian Centre for Treaty Compliance (CCTC) held a one-day conference on 27 November 2006 in Ottawa on 'Compliance with WMD treaties: getting from patchy to perfect.' This document outlines some of the key questions for further research that were identified during the presentations and discussion.
General approaches to non-compliance
- What are the indicators of non-compliance in the various so-called weapons of mass destruction (WMD) fields? The Iraq case, for instance showed that noncooperation is not necessarily an indicator of non-compliance.
- Is there a need for clarity about, and consolidation of, obligations, especially in the nuclear realm?
- Are they too complicated and diverse to be coherent?
- Is coherence important in strengthening nonproliferation as a global norm?
- How can the various WMD regimes develop consensus on what constitutes significant non-compliance?
- When should non-compliance be considered technical and when should it be considered substantive?
- When should it be kept confidential and at relatively low political levels and when should it be made public and referred a treaty executive body and/or to the UN Security Council?
A legalistic approach to compliance emphasizes that not responding strongly to all breachesDmajor and minorDsimply encourages further non-compliance. An approach emphasizing the importance of the overall observance of the norm argues that punitive measures may be counterproductive in promoting better behaviour over the long run. Another school of thought holds that each approach has merit and should be applied on a case-by-case basis.
- What might be the criteria for applying each approach?
Factors in 'strategic' decisions to return to compliance
- What might be the real motivations of states, such as Libya, in making a 'strategic' decision to move from non-compliance to compliance?
- To what extent does external coercion or encouragement contribute, or is the key factor a change in a state's security situation brought about by other developments in the international environment?
Addressing compliance in treaty negotiations
- What is that ideal way that treaty negotiators should address the compliance issue in a treaty text?
- Is there some advantage in compliance considerations being left deliberately vague, on the grounds that ambiguity casts doubt in the mind of the potential violator as to the consequences of its actions?
- Where is the happy medium between a bare bones approach to compliance mechanisms and consequences and an over-elaborate one?
- How can compliance measures be drafted so as not to be too adversarial?
- Is it useful to make provisions in treaties for assistance and capacitybuilding for states that want to comply but are unable to do so? Or will this be viewed as letting states that have no intention of complying off the hook?
- How can different mechanisms be created to separately address technical noncompliance and serious non-compliance (as is done in the climate change regime, for instance)?
- What are the implications for the nuclear nonproliferation regime of the apparent continuing attempts by terrorists to acquire nuclear weapons?
- Is the threat from non-state actors best handled through national implementation measures, or is there a role for multilateral, treaty-based action (as opposed to action by 'coalitions of the willing')?
- Are non-state actors truly undeterrable or is this a myth? Are different forms of deterrence besides nuclear threats likely to work against non-state actors?
- Should all countries continue to be treated uniformly by multilateral verification regimes? For instance, should International Atomic Energy Agency (IAEA) safeguards continue to be non-discriminatory or should this approach be abandoned in favour of targeting countries of true proliferation concern?
- How can the IAEA technically (as opposed to politically) distinguish between countries of concern and those judged to pose a threat to the nonproliferation regime?
- Is the approach of Integrated Safeguards effective in achieving this?
- Should the Small Quantities Protocol be modified, if so, how?
- Should new criteria be developed that avoid politicization but which are able to justifiably discriminate between states?
Enforcing versus encouraging compliance
- Are treaty provisions authorizing a treaty governing body to make final decisions regarding compliance/non-compliance valuable and effective?
- Is the solution to a compliance problem simply to strengthen the punitive and enforcement role of the governing body?
- Will stronger enforcement measures make universal participation more difficult to achieve?
- Will more authority actually deter proliferation?
Role of coalitions of the willing
- Do coalitions of the willing undermine or reinforce the role of multilateral verification and compliance bodies?
- Who should make compliance judgements in order that they be perceived as legitimate? What criteria might be developed for this?
- Are coalitions of the willing a useful adjunct to formal treaty processes or they are harmful to multilateral approaches?
- Should periodic upgrading and strengthening of verification and compliance mechanisms be adopted as standard practice? Should the equivalent of the IAEA Board of Governors' new verification committee, which is tasked with considering continuing improvements to safeguards, be adopted by other regimes, such as biological weapons and chemical weapons?
Role of civil society
- Can civil society take a larger role in monitoring compliance by states and in helping build state capacity and preventing technical non-compliance? (An example is the work by the London-based NGO, VERTIC, on drafting model national implementation legislation for the Biological Weapons Convention).
- Is the approach of 'cooperative compliance' and the involvement of NGOs that is found in the Ottawa Land-Mine Ban Treaty and in the approach by states parties to its implementation, relevant and reproducible in other regimes? Are the implications of non-compliance in the case of WMD treaties too serious to risk using this approach?
International Atomic Energy Agency
- How can the efficiency of IAEA operations be increased? What role do the following play in this respect?
- integrated safeguards
- small quantities protocol
- universalization of the Additional Protocol
- Is a root-and-branch overhaul of safeguards possible given the difficulty of amending the NPT, the dual role of the IAEA in promoting and regulating the uses of nuclear energy and the divisions between various blocs in the IAEA membership?
- How can cooperation be improved between states within the IAEA? Can there be a better balancing of the goals of different states parties (for example, the nonaligned focus on assistance and cooperation versus Western countries' focus on safeguards)?
- What are the implications, benefits and disadvantages of consensus (the 'Spirit of Vienna'), compared to voting, in IAEA Board of Governors on critical decisions such as non-compliance?
- What implications does the voluntary nature of the Additional Protocol have for the choice of coercive versus cooperative approaches in promoting compliance with IAEA safeguards?
Organisation for the Prohibition of Chemical Weapons
- Although the OPCW is working actively in seeking to improve states parties' national implementation measures, what more could be done to increase compliance in this area?
- How can the OPCW best address the challenges of states' differing legal systems?
- Will the increased focus on strict national implementation measures decrease the willingness of states to join treaties in the future on the grounds that they are too intrusive in terms of state sovereignty and state prerogatives?
- How should the Chemical Weapons Convention's compliance regime deal with US and Russian non-compliance with their obligations to destroy their chemical weapon stockpiles by 2012? Should this be treated as a minor non-compliance matter or a threat to the balance of obligations in the treaty? Should there be a treaty amendment conference to change the destruction schedule, which seems to be what is required, and if not, what will be the implications for the willingness of states to comply with other obligations under the treaty and the ability of the OPCW to press states to comply?
United Nations Monitoring, Verification and Inspection Commission (UNMOVIC)
- What verification and compliance lessons might be drawn from the UNMOVIC experience, where Iraq was uniquely both seeking to demonstrate that it had complied with its obligations to destroy its WMD and seeking to convince its neighbours that it was not entirely toothless in terms of its WMD capabilities?
- In what ways does cultural sensitivity increase inspection effectiveness?
- How can inspectors be best prepared in terms of cultural issues?
- What are lessons learned regarding conducting inspections, including interviews, searches and seizures of materials, in a culturally sensitive manner?
- How can so-called National Technical Means (NTM) be best used by multilateral verification agencies?
- Is effectiveness and/or legitimacy increased when the provision of NTM to a multilateral verification body is transparent and official?
- How can impartiality be maintained in these circumstances?
- What measures can be implemented to ensure that intelligence does not, damagingly, flow both ways, not just from intelligence agencies to the multilateral inspection body, but vice versa?
- Can UNMOVIC (which still exists) be maintained and utilized in settings other than Iraq? How can the UN Security Council be motivated to consider the future of UNMOVIC rationally and with an eye to preserving hard-won verification gains in the face of lingering deep political divisions over its use in Iraq?
- Why did Libya change its mind about developing a WMD capability further?
- Was it a matter of targeted sanctions? what was targeted and what were the leverage points?
- Was it a matter of compellance/deterrence emerging from the spectre of US military action as suffered by Iraq?
- How significant was the interdiction action against the BBC China in convincing Libya to change its mind?
- What preparations should/could be made in advance to ensure that future cases like Libya do not involve a scramble for personnel and resources for rapidly removing WMD materials and components from the state concerned and beginning the accounting and verification process before the state changes its mind? Should multilateral verification agencies like the IAEA and OPCW have contingency plans and funds in place?
United Nations Security Council
- How can the Council's procedures and resources be augmented to permit it to make betters assessments of a state's non-compliant activities?
- After the Council has agreed that non-compliance is occurring, how can its ability to respond be improved, either through encouragement, assistance, inducement, or ultimately sanctions?
- What is the proper balance of incentives and disincentives to convince a state to return to compliance? can some basic principles be enumerated or is it likely to be case-specific?
- How are sanctions best implemented? how can the Security Council improve its oversight of sanctions, especially in the light of the failures of the Oil-for-Food program in the case of Iraq? what are the appropriate monitoring, reporting or verification mechanisms for ensuring that sanctions are being both complied with by UN member states and effectively administered by the UN?
- Can the Council overcome political divisions in making non-compliance judgements?
- Is it necessarily the best international body to deal with non-compliance issues?
- Is its political legitimacy undermined in the nuclear field by the veto of the recognized nuclear weapon states?
- Can resentment on the part of many non-nuclear weapon states about the role of the Council in making compliance judgements be mitigated or better managed?
- How can the Council's system of subsidiary bodies to deal with compliance issues (such as UNMOVIC and sanctions committees) be improved?
- Is it an effective strategy to implement sanctions to encourage a diplomatic solution or should the strategy be reversed?
- How can referral to the Security Council be better used to promote the resolution of non-compliance issues outside the Council?
- What should the balance be between coercive and cooperative approaches to improving compliance? how does the Council move from admonitions of noncompliant behaviour to enforcement?
- How should we understand the non-compliant behaviour of North Korea?
- Why did it test its nuclear device when its non-compliant behaviour in respect the Nuclear Non-Proliferation Treaty was already causing it to be increasingly isolated internationally, not least from its erstwhile closest ally, China?
- What is the real domestic situation in North Korea, both politically and economically, and how might this affect the regime's decisions in the nuclear realm?
- The absence from the 1994 Framework Agreement of a dispute resolution mechanism proved to be a severe problem. What should a dispute resolution mechanism look like for similar future agreements?
- How should negotiations be structured to maximize efficiency and make it suited to North Korea's capacity and political decision-making?
- Can the technical and political levels be separated?
- Would concurrent working groups on different issues be able to function effectively given that North Korea has only limited human and technical capacity to negotiate the complex of issues?
- Is North Korean participation always required in technical discussions on particular issues, such as the provision of assistance by other members other 6-party talks?
- Can interactions between different multilateral institutions be leveraged for greater influence, for example, a coordinated strategy by the Asian Development Bank sanctions and the UN Security Council in respect of sanctions?
National implementation measures
- Is each country's legislation legally and practically effective?
- Is there consistency in all areas of domestic law (criminal, procedural, administrative)?
- Are they clear, explicit, and accessible enough to make them easily enforceable?
- Do they carry adequate penalties (for example, Canada's relatively light penalties for possession of nuclear material)?
- How can domestic capacity be strengthened (legal, scientific, administrative) to ensure national implementation?
- What are the roles of treaty bodies, states parties, and civil society respectively?
- Are there proper legislative models for all types of legal systems? Can such models be developed given the differences between state systems even within broad categories?
- How can the nonproliferation regimes better deal with the intervention of domestic parliaments and politicians that result in frustrating or delaying the implementation process?
- Is the implicit obligation for states to undertake national implementation measures clearly established for treaties in which such an obligation is not explicitly mentioned?
- Can sanctions be institutionalized in order to make them straightforward, predictable, and credible and thus enhance their deterrent value (on the basis that once sanctions are imposed they could be said to have failed)?
- How effective are WMD-related sanctions as compared with those imposed for other purposes?
- What is the success rate of economic sanctions in effecting change in WMD-related behaviour?
- What is the success rate of sanctions in targeting specific weapons components or technologies, as compared with the weapons themselves?
Use of force
- What are the implications of the use of force in Iraq in defiance of the majority of the UN Security Council for future non-compliance cases in the WMD realm ?
- What does 'imminent threat' of armed attack mean in the area of WMD, where potentialities and capabilities may take decades to mature?
- What are the thresholds of timing, accuracy of intelligence, and potential destructiveness that one would need to be aware of in using force to prevent the threat of WMD?
- Would the International Criminal Court have jurisdiction in cases involving WMD use?