THE LAW OF ARMS CONTROL pptx

CHARACTERISTICS OF THE SOURCES OF ARMS CONTROL LAW 2.1 The sources of international law 2.2 The importance of treaties in arms control law 2.3 Classification of arms control treaty law 2

THE LAW OF ARMS CONTROL

Developments in International Law

VOLUME 41

GUIDO DEN DEKKER

International Supervision and Enforcement

M A R T I N U S N I J H O F F P U B L I S H E R S THE HAGUE / BOSTON / LONDON

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Preface

This book is the result of a good four years of research, conducted at the Department of International Law and International Relations of the University of Amsterdam At this point, I would like to take the opportunity

to thank the many persons that have been of fundamental importance to me over this period of time

First of all, my gratitude goes to my supervisor, professor Bert Vierdag, and

my CO-supervisor, dr Eric Myjer, who have given me all the freedom I wanted while remaining critical and, each in his own way, supportive Furthermore, I would like to express my gratitude to the other members of

my Promotion Committee, viz professor AndrC Nollkaemper, professor Hans Lammers, professor Nigel White, dr Niels Blokker and dr Henk Leurdijk, for their careful study of the manuscript and their valuable comments I would also like to thank the Faculty of Law of the University of Amsterdam for providing me with the necessary financial support which enabled me to attend scientific conferences in Sarajevo, Lillehammer and Cambridge, UK, as well as the T.M.C Asser Institute in The Hague for financially supporting my trip to Minsk

A large number of people, be they family, friends or colleagues, have (knowingly or not) truly supported me during my research and the writing of this book I would like to thank all of them (in bulk) very much Special mention deserve Catherine Brolmann, who, as my room mate, has witnessed all my troubles and ups and downs for nearly four years, and Ramses Wessel, with whom I have had the pleasure of writing several articles together Last but not least, I would like to thank my parents, brothers, and grandparents, for their ongoing and unconditional support

Needless to say, the author alone is responsible for any mistakes or errors occurring in the book The research for this book was concluded December

2000

GdD

UtrechtIAmsterdam, February 200 1

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xvi

1 INTRODUCTION TO THE STUDY

AND PROBLEMS ADDRESSED

4 HISTORICAL DEVELOPMENTS IN ARMS CONTROL

PRIOR TO THE ESTABLISHMENT OF THE UN

4.4 The legality of war and the emergence

PART I

THE LAW OF ARMS CONTROL

system

2 ORIGINS OF AND INCENTIVES FOR ARMS CONTROL

IN THE INTERNATIONAL SYSTEM

2.1 The international system and military power 16

3 THE SECURITY CONTEXT OF ARMS CONTROL

3.1 The interrelationship between national and international security 27 3.2 The interrelationship between arms control and security 29

3.3 The interrelationship between law and politics

vii

4 THE LAW OF ARMS CONTROL: DEFINITION

4.1 The law of arms control as a special branch of international law 4.2 The substantive law of arms control

4.3 The institutional law of arms control

4.4 The common ultimate objective of the arms control process

5 INTERNATIONAL LAW APPLICABLE TO THE BEHAVIOUR

OF STATES WITH REGARD TO THEIR NATIONAL

ARMAMENTS OUTSIDE THE LAW OF ARMS CONTROL 5.1 The applicability of rules of international law

to the law of arms control

5.2 The law of arms control and the laws of war

1 Introduction

2 CHARACTERISTICS OF THE SOURCES

OF ARMS CONTROL LAW

2.1 The sources of international law

2.2 The importance of treaties in arms control law

2.3 Classification of arms control treaty law

2.4 Arms control law as part of peace treaties

or ceasefire arrangements: dictated arms control law

2.5 Arms control treaties voluntarily entered into

by the States Parties: consensual arms control law

2.5.1 Unilateral arms control measures

2.5.2 Bilateral arms control treaties

2.5.3 Multilateral arms control treaties

2.5.4 Treaties, Acts and Documents accessory to arms control treaties 2.5.5 'Politically binding' documents concerned with arms control 2.6 Customary international law in the field of arms control

2.6.1 Arms control and the nature of customary international law 2.6.2 The absence of an established body of 'customary

arms control law'

2.7 General principles of law relating to arms control

2.7.1 Arms control and the nature of general principles of law

2.7.2 General principles of arms control law and politics

2.8 Subsidiary sources for the determination of arms control law

3 CHARACTERISTICS OF THE SCOPE OF SUBSTANTIVE AND INSTITUTIONAL ARMS CONTROL LAW

3.1 The scope of substantive arms control law

3.1.1 Substantive nuclear arms control law

3.1.2 Substantive chemical arms control law

3.1.3 Substantive biological arms control law

viii

3.1.4 Substantive conventional arms control law 77 3.1.5 Substantive arms control law relating to future weapons 79 3.1.6 Substantive arms control law not related to a particular

3.2 The scope of institutional arms control law 80

4 CHARACTERISTICS OF THE PRACTICE

2.2 Unilateral and diplomatic supervision

2.3 The legal basis for the exercise of unilateral

and diplomatic supervision

2.4 International supervision

2.5 The legal basis for the exercise of international supervision

2.6 Supervision and types of rules

2.7 The rationale of supervision in arms control law

3 THE PROCESS OF INTERNATIONAL SUPERVISION

3.1 Different phases of the process of international supervision

3.1.1 Monitoring

3.1.2 Verification

3.1.3 Dispute settlement

3.1.4 Correction/enforcement

3.1.5 The interpretative element

3.2 Treaty-specific and treaty non-specific arms control supervision

4 SUPERVISORY MECHANISMS IN ARMS CONTROL

LAW: METHODS OF SUPERVISION

4.1 The institutional design of methods of supervision

4.2 Monitoring methods

4.3 Verification methods

4.3.1 Methods of stage 1 of the verification process (fact-finding)

4.3.2 Methods of stage 2 of the verification process (review)

4.3.3 Methods of stage 3 of the verification process (assessment) 129 4.4 Methods of non-judicial dispute settlement 130

5 SUPERVISORY MECHANISMS IN ARMS CONTROL

LAW: SUPERVISING BODIES

5.1 The 'institutionalisation' of supervisory mechanisms

through the establishment of international bodies 141

5.2 A note on the powers and composition of supervising organisations 147

5.3 The relationship between the powers of supervising organisations

5.4 The objects of supervision as exercised

6 SUPERVISION AND COMPLIANCE

6.1 Potential motives for non-compliance with arms control treaties 157 6.2 A note on the question of effectiveness of supervisory mechanisms 158

PART IIA

INTERNATIONAL SUPERVISION OF THE LAW OF ARMS CONTROL: SELECTED TREATIES

arms control treaties

1 Introduction

2 MONITORING

2.1 Monitoring provisions in global arms control treaties

that apply to uninhabited territories

2.2 Monitoring provisions in other global arms control treaties

2.3 Monitoring provisions in regional arms control treaties

2.3.1 Monitoring provisions in Nuclear Weapon Free Zone Treaties

2.3.2 Monitoring provisions in the CFE Treaty

3 VERIFICATION

3.1 Verification provisions in global arms control treaties

that apply to uninhabited territories

3.2 Verification provisions in other global arms control treaties

3.3 Verification provisions in Nuclear Weapon Free Zone Treaties

3.3.1 Institutional design of the Tlatelolco Treaty

3.3.2 Methods of verification in the Tlatelolco Treaty

3.3.3 Institutional design of the Rarotonga Treaty

3.3.4 Methods of verification in the Rarotonga Treaty 189 3.3.5 Institutional design of the Pelindaba Treaty 192 3.3.6 Methods of verification in the Pelindaba Treaty 193 3.3.7 Institutional design of the Southeast Asia

3.3.8 Methods of verification in the Southeast Asia

3.4 Verification provisions in the CFE Treaty 199

3.4.2 Methods of verification in the CFE Treaty 200

4 DISPUTE SETTLEMENT

4.1 Dispute settlement provisions in global arms control treaties

4.2 Dispute settlement provisions in other global arms control treaties 204 4.3 Dispute settlement in regional arms control treaties 206 4.3.1 Dispute settlement provisions in

4.3.2 Dispute settlement provisions in the CFE Treaty 208

5 CORRECTIONIENFORCEMENT

5.1 Provisions on correction/enforcement in global arms control treaties

5.2 Provisions on correction/enforcement in other

5.3 Provisions on correctiodenforcement in regional

5.3.1 Provisions on correctiodenforcement in

5.3.2 provisions on correctiodenforcement in the CFE Treaty 212

7 CONCLUDING REMARKS ON THE GENERAL FEATURES

7.1 General features of monitoring provisions in arms control treaties 2 15 7.2 General features of verification provisions in arms control treaties 216 7.3 General features of dispute settlement provisions

7.4 General features of correctiodenforcement in arms control treaties 21 8

control treaties featuring international organisations: OPCW, IAEA, CTBTO

i Introduction

I THE CWC AND THE OPCW

1 A brief note on history

1.1 The 1925 Geneva Protocol

1.2 Decoupling chemical and biological weapons

2 SUBSTANTIVE LAW IN THE CWC

2.1 Objectives and purposes of the CWC: the CWC preamble 2.2 Article I - general obligations

2.3 The problem of dual use of chemicals

2.4 Schedule l , 2, 3 chemicals and facilities

3 THE SUPERVISORY MECHANISM OF THE CWC: THE SUPERVISING BODY

3.1 The OPCW

3.1.1 The Conference of the States Parties (CSP)

3.1.2 The Executive Council (EC)

3.1.3 The Technical Secretariat (TS)

4 THE SUPERVISORY MECHANISM OF THE CWC: METHODS OF SUPERVISION

4.1 Monitoring provisions in the CWC

4.1.1 Declarations on ownership or possession (Art 111)

4.1.2 Plans, Declarations and information relating to destruction 4.1.3 Declarations with respect to chemicals and facilities used for activities not prohibited under the Convention (Art VI) 4.1.4 Exchange of information: information to and from the TS 4.1.5 Information relating to assistance and protection

against chemical weapons

4.1.6 Monitoring methods in the context of inspections

4.2 Verification provisions in the CWC

4.2.1 Stage 1 of the verification process: fact-finding

4.2.1.1 Fact-finding with respect to chemical weapons

4.2.1.2 Fact-finding with respect to CWPF and other facilities 4.2.1.3 Methods of additional fact-finding

4.2.1.4 Fact-finding in regard to assistance and protection against chemical weapons

4.2.2 Stage 2 of the verification process: review

4.2.3 Stage 3 of the verification process: assessment

4.3 Provisions on dispute settlement in the CWC

4.4 Provisions on correction/enforcement in the CWC

4.5 The interpretative element in the CWC

IT THE IAEA SAFEGUARDS SYSTEM AND THE NPT

1 A brief note on history

1.1 The failure to outlaw nuclear weapons

1.2 Atoms for Peace and beyond

2 THE IAEA

2.1 Objectives and functions

2.2 Institutional structure of the IAEA

xii

2.2.1 General Conference 273

3.2.1 National system of accounting for and control of nuclear material 282

3.3.1 Stage 1 of the verification process: fact-finding 286 3.3.2 Stages 2 and 3 of the verification process: review and assessment 293

3.4 Provisions on dispute settlement

3.5 Provisions on correction/enforcement

3.6 The interpretative element

4 ENHANCING THE EFFECTIVENESS OF THE

SAFEGUARDS SYSTEM: THE '93+2' PROGRAMME

4.1 Inducements to strengthen the system

4.2 The Model Additional Protocol

4.2.1 Objectives of the Model Additional Protocol

4.2.2 Monitoring provisions in the Model Additional Protocol

4.2.3 Verification provisions in the Model Additional Protocol

III.THECTBTANDTHECTBT0

1 A brief note on history

1.1 The development of nuclear weapons

1.2 Test ban and non-proliferation

2 THE SCOPE OF THE SUBSTANTIVE LAW IN THE CTBT

3 THE SUPERVISORY MECHANISM OF THE CTBT:

THE SUPERVISING BODY

3.1 The CTBTO

3.1.1 The Conference of the States Parties (CSP)

3.1.2 The Executive Council (EC)

3.1.3 The Technical Secretariat (TS)

4 THE SUPERVISORY MECHANISM OF THE CTBT:

METHODS OF SUPERVISION

4.1 Monitoring provisions in the CTBT

4.1.1 NTMs

4.1.2 International Monitoring System (MS)

4.1.3 The IMS and assessments regarding compliance

4.1.4 Confidence-Building Measures

4.2 Verification provisions in the CTBT

4.2.1 Stage 1 of the verification process: fact-finding

4.2.2 Stage 2 of the verification process: review

4.2.3 Stage 3 of the verification process: assessment

4.3 Provisions on dispute settlement in the CTBT

4.4 Provisions on correction/enforcement in the CTBT

4.5 The interpretative element in the CTBT

1 Introduction: co-operation and enforcement

2 VIOLATIONS OF ARMS CONTROL LAW:

NATURE AND SIGNIFICANCE

2.1 Criteria for categorising violations

2.2 The significance of violations of substantive arms control law

2.3 The significance of violations of institutional arms control law

3 REACTIONS TO VIOLATIONS: THE RELATIONSHIP

BETWEEN REMEDIES IN SUPERVISORY MECHANISMS

AND REMEDIES AVAILABLE UNDER GENERAL

INTERNATIONAL LAW

3.1 Introduction: possible concurrence of reactions to violations

3.2 Supervisory mechanisms in arms control treaties and reactions

to violations pursuant to the law of State responsibility

3.2.1 Non-military countermeasures as reactions to violations

3.2.2 Restrictions on the employment of countermeasures due to

the existence of a treaty regime

3.2.3 Restrictions on the employment of countermeasures 'in kind'

due to the existence of a treaty regime

3.3 Supervisory mechanisms in arms control treaties and general

law of treaties reactions to breaches of treaty

3.3.1 Introduction

3.3.2 Withdrawal, termination or suspension of the operation of a treaty353

3.3.2.2 Termination or suspension of a treaty as a consequence

3.3.3 Breach of prohibitions of use: the effect of inter-State armed

conflict on the validity and operation of arms control treaties 360 3.4 Supervisory mechanisms in arms control treaties and the role

of the Security Council in enforcing compliance 3 64

xiv

4 CONCLUDING REMARKS

5 CONCLUDING REMARKS ON THE ROLE OF

INTERNATIONAL LAW IN ARMS CONTROL

Chapter 8 - Summary and conclusions

1 The law of arms control

2 Special characteristics of the law of arms control

3 International supervision of the law of arms control

4 International organisations as supervisors in arms control law

5 Some common characteristics of supervisory mechanisms

in arms control treaties

6 Enforcement of the law of arms control

REFERENCES

(Bibliography, Official Documents, Table of Cases)

Annexfigure I: Model for the General Analysis of Supervisory

Mechanisms in Arms Control Treaties INDEX

Association of South-East Asian Nations Biological Weapons Convention

Conference on Disarmament Conventional Forces in Europe Conference of the States Parties Comprehensive nuclear Test Ban Treaty Comprehensive nuclear Test Ban Treaty Organisation Chemical Weapons Convention

Chemical Weapons Production Facility Director-General

Democratic People's Republic of Korea (North Korea) Executive Council

European Journal of International Law Encyclopaedia of Public International Law European Atomic Energy Community General and Complete Disarmament German Yearbook of International Law International Atomic Energy Agency Intercontinental Ballistic Missile International Court of Justice Reports of Judgements, Advisory Opinions and Orders

of the ICJ International Data Centre International Law Commission International Legal Materials International Monitoring System Intermediate-range Nuclear Forces Leiden Journal of International Law League of Nations Treaty Series Limited nuclear Test Ban Treaty North-Atlantic Treaty Organisation Netherlands International Law Review Non-Nuclear Weapon States

Treaty on the Non-Proliferation of Nuclear Weapons National Technical Means

Nuclear Weapon Free Zone

Organisation of African Unity Agency for the Prohibition of Nuclear Weapons in Latin America

Organisation for the Prohibition of Chemical Weapons Organisation for Security and Co-operation in Europe On-Site Inspection(s)

Permanent Court of Intemational Justice Peaceful Nuclear Explosions

Peaceful Nuclear Explosions Treaty Resolution

Special Session on Disarmament Single Small-scale Facility Strategic Arms Reduction Treaty Soviet Union

Treaty Limited Equipment Trinitrotoluene (a powerful explosive) Technical Secretariat

Threshold Test Ban Treaty United Kingdom

United Nations United Nations General Assembly United Nations Security Council United Nations Special Commission United Nations Secretary-General United Nations Treaty Series United States of America Western European Union World War

xvii

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General introduction to the study

1 Introduction to the study and problems addressed

I I Introduction

In the community of States, as in any community, order is a primary value Public international law constitutes a fundamental means for structuring and regulating the relations between States in the international order.' Some decades ago already, it was observed that the structure of international law was changing, from the law of CO-existence towards the law of co- operation.* One of the first areas where the necessity of co-operative behaviour between States has been recognised is in the maintenance of international peace and security As a guiding principle, it can be upheld that most of the time most of the States benefit most from a situation of international peace and security At the same time, it should be acknowledged that in exceptional circumstances the international community as a whole will benefit more from (limited) warfare than from a peacehl situation in which a State is allowed to pose a serious threat to intemational peace and security; the collective security system of the United Nations (UN) is based on this concept

History shows that the build-up by States of massive arsenals of weapons culminating in a quantitative as well as a qualitative arms race is one of the reasons that war and other forms of armed conflicts have occurred The idea that arms should be controlled in order to avert war dates back a long time Since the nineteenth century, an extensive number of arms control agreements has been concluded and recent events have attracted renewed attention to international arms control Examples include the imposition of

an arms control regime on Iraq by the UNSC (since 1991), the inclusion of arms control paragraphs in the Dayton Peace Agreement for the Former Yugoslavia (1995) and the discussions on the compatibility of the 1972 ABM Treaty with the revived US concept of national missile defence (since about 1999) The nuclear test explosions conducted by India and Pakistan in May 1998 and the launch of a three-stage missile on 31 August 1998 by the

' The notions 'international law' and 'public international law' are used as synonyms throughout this study

* See generally Friedmann (1964)

1

DPRK (North Korea) have caused the issues of nuclear arms control and ballistic missile threats to appear at the top of the agendas of States and various international organisations

Today the subordination to international law of States' behaviour with regard to national armaments remains problematic in many respects, notwithstanding the clear developments that have taken place regarding the manner in which States choose to organise themselves when dealing with problems of arms control In the post Cold War situation, the political order appears to be changing further, towards interdependence.3 This development has not fundamentally changed the basic attitudes of 'Western', 'Eastern' and 'Non-Aligned7 groups of States towards arms control law, and negotiations on arms control issues still take many years without their success being guaranteed, even after the conclusion of a treaty - as the difficulties surrounding the entry into force of the CTBT ill~strate.~ Regulating the behaviour of States with regard to their national armaments has in many respects proven to be difficult and complex For this, one paramount explanation comes to the fore: the national security interests (and subsidiary interests, such as economic ones) of different States in the field

of arms control are too divergent to allow for the emergence of large-scale (let alone global) consensus on many fundamental issues This begs the question how international law has dealt with the inherent tension between the well-perceived necessity of co-operation between States in order to establish a situation of international peace and security on the one hand, and the equally well-perceived necessity of each and every State to pursue its national security interests on the other hand Whereas the first necessity implies the need for international regulation and a progressive reduction of armaments, the second necessity emphasises national self-defence, justifying the maintenance of at least an adequate level of armaments

1.2 Main questions andpurposes of the study

Against this background, the present study endeavours to contribute to the understanding of the role of international law in the international arms control process In the jrst part of this study, the 'law of arms control' is identified as a special field of international law according to its legal characteristics Furthermore, in this part the relationship between arms control, international law and the quest for the maintenance of international peace and security is discussed The second part of this study is devoted to

one of the most important features of the law of arms control, viz the

See Jacquet (1 992)

The CTBT was opened for signature on 24 September 1996, but the number of 44 specified States (Art XIV) required to effectuate entry into force of the treaty has as yet (2000) not been reached After the refusal by the American Senate to ratify the treaty (on 13 October 1999), it may very well take years before entry into force of the CTBT comes within reach See infra, chapter [6]

appearance of (more or less elaborate) supervisory mechanisms The conviction has grown, both in theory and in practice, that only if States' behaviour in respect of arms control law can be carefully supervised, States are willing and able to submit their behaviour to international law and to respect any reasonable outcome of the supervisory procedures The search for insights and trends with regard to the supervision of compliance with arms control law is undertaken by analysing the most important legal documents along the lines of a general theory of supervision This theory is applied to a broad selection of multilateral arms control treaties currently in force Special emphasis is on those treaties that create the most elaborate co- operative structures, viz the safeguards system of the IAEA in connection with the NPT, the CWC and the CTBT These treaty regimes have established specialised international organisations as supervising bodies In

the analysis of the supervisory mechanisms, the division of powers between the States Parties to the treaty and the supervisory body has to be taken into account The third and final part of the study addresses the question of enforcement of arms control law by focusing on the powers regarding the enforcement of compliance that, in respect of the supervising bodies, derive from the treaty regime, and that, in respect of the States Parties, derive from general international law

As already appears from the above, this study addresses three main questions In Part I (chapters [2] and [3]), the question that will be addressed

is: what is the place of the law of arms control in the system of international law and politics and by what special legal characteristics can this field of law be identified? Then, in Parts D and IIA, on international supervision of

the law of arms control, theory and selected treaties - see chapters [4] to [6]

- a theory on supervision, as applied to the law of arms control, will be enunciated and supervisory mechanisms in selected arms control treaties will be described and analysed in order to answer the question which general features of supervision in arms control law may be discerned In Part

HI, entitled 'enforcement of the law of arms control' (chapter [7]), the enforcement of arms control law is discussed, by addressing the question how the legal interrelationship between the powers of law enforcement that are exercised by supervising bodies and those of the individual States Parties can be characterised

To summarise, the purpose of this study is to provide a deeper understanding of the role of international law in the arms control process, primarily by presenting an analysis of the process of international supervision and enforcement of arms control treaty law This study more specifically aims to provide insights into the legal characteristics of the body

of law that constitutes the law of arms control, to offer an analysis of supervisory mechanisms in arms control treaties as well as an inventory of their common general features, and to discuss the basic problem of

enforcement of arms control law in cases of alleged or established non- compliance

2 Overview of contents

An introductory chapter offers an ideal opportunity for giving a historical sketch, and so the final paragraph of this chapter addresses the historical developments in arms control prior to the establishment of the UN In

chapter 2, the law of arms control will be defined as a field of law and

systematically placed within the larger framework of the politics and the law

of international peace and security It will be argued that its place in this framework accounts for most of the special legal characteristics of arms control law In chapter 3, special legal characteristics of the law of arms control will be identified, as they are found in the sources of arms control law, in the scope of its substantive law as compared to the scope of the institutional law, and in the absence of practice in the application of some of the special supervisory procedures

In order to be able to answer the question what general features are common

to supervisory mechanisms in arms control treaties, it is necessary to make a comparative analysis of the supervisory mechanisms of those treaties To that end, in chapter 4, a theory is presented for the analysis of supervisory mechanisms in arms control treaties In chapter 5, this theory is applied to multilateral arms control treaties in order to provide an in-depth analysis of the common characteristics of their supervisory mechanisms In chapter 6 the theory is likewise applied to the three global arms control treaties NPT, CWC and CTBT Emphasis will be on the general features of the supervisory mechanisms of these treaties, thereby taking account of additional points of interest (such as historical notes, dual-use issues and confidentiality regimes)

Finally, chapter 7 deals with the division of powers of law enforcement between individual States Parties on the one hand, and supervisory bodies

on the other hand, by raising the question as to what extent States Parties to arms control treaties have retained the right to make use of enforcement measures that are commonly available to them pursuant to general international law, when there is at the same time a treaty-based supervisory mechanism available on the basis of which the supervisory bodies can exercise certain powers of enforcement

This study offers an in-depth overview of the law of arms control as it stands in the post Cold War situation and provides a comprehensive theory and model for the analysis of supervisory mechanisms in arms control treaties It is endeavoured to take account of the long-term development of the law of arms control, against the background of the many political processes that influence this field of law Since this study is not only meant

to be of interest to international lawyers but also to political scientists and policy-makers, certain concepts of international law, full understanding of which cannot be taken for granted where non-lawyers are concerned (such

as the concept of how customary international law is created), will be explained before being applied

3 Methodology of the research

In accordance with the positivist legal tradition, it is upheld in this study that

a scientific inquiry into any field of law should have as its object what 'is' and not what 'ought' to be Therefore the inquiry in this study, which involves questions such as 'what are the legal characteristics of arms control law?', 'what are the general features of supervision in arms control law?', and 'what mechanisms are available with regard to enforcement of compliance with arms control law?' has as its object lex lata

It is probably the primary task of an international lawyer to answer the question 'what is the law?', rather than 'what should the law be?' The first question is a legal question, the other, interesting and important as it may be,

is not.' A positivist approach to law is an ideal tool for stocktaking: where does "existing" law stand on the matter?6 One consequence of making this choice of approaching the law of arms control as it is and how it has developed so far rather than concentrating on how the law should be and in what direction it (eventually) should develop, is that a clear so-called 'Western', 'Eastern', or 'Non-Aligned' stance in matters of arms control can

be avoided as much as possible Still, the law that 'is' is not completely severed from the law that is about to 'be': lex lata may help shape future law The fact that international law with regard to arms control is the result

of international political processes is constantly apparent and has to be taken into account when that law is being discussed The importance of the political relations between States for the negotiation of arms control arrangements and their interpretation and application is even further enhanced by the fact that arms control law is dominated by considerations of security, which as a concept is - to say the least - more of a political than of

a legal nature

Keeping the above in mind, the present study relies heavily on the analysis

of 'primary' sources, i.e treaties and other official documents, such as decisions and resolutions of international organisations, (final) acts of inter- governmental and other conferences and, occasionally, travaux prkpavatoives The theory used to analyse supervisory mechanisms in arms control law has been developed starting from earlier treaty analysis (namely,

See Weiler & Paulus (1997), p 550

See Simma & Paulus (1999), p 308

of the CTBT~) that is subsequently applied to and put to the test with regard

to other multilateral arms control treaties in force Of course this method of research does not exclude the possibility of making critical comments on the 'state of the law' in the field of arms control with a view to bringing it closer

to what it 'ought' to be, but in this field especially it is important not to pretend that wishful thinlung lege ferenda is part of lex lata

Obviously there is a strong interaction between the theory presented in chapters 2, 3 , 4 and 7 and the treaties to which it is applied in chapters 5 and

theoretical framework for analysis presented in this study is an aid to provide a deeper understanding of the structure of supervisory mechanisms

in arms control treaties; it is not to be considered as a set of criteria that supervision in arms control law should meet Regarding both the theoretical parts and the treaty analysis, naturally also 'secondary' sources, such as monographs, articles, conference papers, etc have been made use of

Finally, it should be stressed that the practice of arms control law in the sense of the day to day functioning of arms control treaty regimes is not the subject of this study Whereas the discussion of the implementation and practical functioning of particular arms control treaties would detract from the coherent handling of the main questions and purposes of this study, most (known) practice of arms control law does not warrant separate discussion

in the first place - apart from a few notorious cases of established non- compliance, which are discussed in chapters [3] and [ 6 ]

4 Historical developments in arms control prior to the establishment of the UN

For a proper understanding of today's arms control law, knowledge of the ideas of yesterday's drafters of the law is indispensable Since law has evolved in and is a reflection of social and political reality, the thinking about arms control is largely determined by historical conceptual

d e v e l ~ ~ r n e n t s ~ Mankind has such a long and continuous tradition of bloodshed that any history of warfare will serve to provide a good outline of human history as a wh01e.~ Closely connected to the emergence and

This analysis appears in Den Dekker (1997)

The inventory of arms control agreements that appears in this section is based, first and foremost, on Dupuy & Hammerman (1973) The definition used by Dupuy and Hammerman

to identify 'arms control and disarmament agreements' is the following: 'disarmament' means that actual reduction in armaments is referred to and 'arms control' is used for all other kinds

of restrictions or limitations on weapons employment (p V)

It is illustrative that the first documented treaty ever, dating back to 3 100 BC, was a peace treaty It was concluded to end a war between two Mesopotamian city-states, the common

development of arms control is the issue of the legality of war and the peaceful settlement of disputes, as well as the relationship between security and arms control for the maintenance of international peace and the prevention of war Although many arms control treaties have been concluded especially after WW II, earlier periods have also witnessed quite ambitious endeavours towards controlling armaments through the law Hence, there is no compelling reason why the starting-point for an inquiry into arms control law should be situated after the year 1945 Although many

of the pre-WW 11 arms control treaties, especially those of the inter-war period, never made it beyond the drafting stage, they clearly indicate that the origins of the legal thinking about the interrelationship between peace, war, security and arms control started long before the creation of the UN

4.2 Arms control agreements before WWI

Already in ancient times efforts were made to negotiate arms contr01.'~ In

the Middle Ages, it was the Church that attempted to control arms by way of the so called 'peace of God' or 'truce of God' The peaces and truces of God merely restricted fighting by forbidding attacks on churches and on clergy and others who are not bearing arms" and by forbidding fighting on certain days of the week and at specified times of the church year.'2 The punishment for violation of the peaces and truces was anathema or excommunication, and reparations were to be made through satisfaction (e.g undertaking a pilgrimage to Jerusalem) Both kinds of documents (peaces and truces) were decreed for the whole church at the Second Lateran Council (1139), which even addressed the prohibition of the use of particular weapons against christians.13 In those days, also temporal rulers used to decree so-called 'peaces of the Land' in order to prevent private

Gods of which were the guarantors of the treaty: they would punish its violation See Nussbaum ( l 96 l), p 1

'O E.g., in 546 BC a peace conference took place in Honan Province, China This peace conference ended the seventy-two years of almost incessant war and pledged to bring about disarmament in the Yangtse Valley The text of the document speaks of a 'cessation of armaments' without further specification See Dupuy & Hammerman (1973), p 3

l ' A peace of God proclaimed in the Synod of Charroux in the year 989 specifies 'arms' as shield, sword, coat of mail, or helmet Also 'defensive' armoury is thus taken into account

l* E.g., truce of God, made for the Archbishopric of Arles, 1035-1041, which prescribes to keep true and lasting peace from vespers on Wednesday to sunrise on Monday, so that during those four days and five nights, all persons may have peace, and, trusting in this peace, may

go about their business without fear of their enemies See also truce for the Bishopric of Terouanne, 1063, which forbids, inter alia, assault on persons and attack on castles

l3 Although in secondary works the use of the crossbow is usually mentioned as the best known example, the qualitative arms control effort in Lateran Council Decree 29 applies more generally to all kinds of bow-and-arrow weapons There is general agreement that the ban was not applicable to the use against non-Christians, and there is no doubt that any ban that existed was widely ignored See Dupuy & Hammerman (1973), p 1 1

wars within the domain of the mler.14 As punishment for violating peaces of the Land the perpetrator could stand to loose his eyes or his hand or even be subjected to capital punishment

In the 1 5 ' ~ and 16" centuries, the centralised nation-State was in the course

of replacing feudalism The development of modem weaponry (especially firearms), which became increasingly deadly in the and lgth centuries, made wars more devastating than ever before From the 17" century onwards, efforts were made to neutralise territory (occasionally in combination with demilitarisation for purposes of neutralisation) and to raze fortifications.15 Some treaties that settled wars contained other measures in

14 E.g., peace of the Land established by Henry IV, 1103 and peace of the Land for Elsass, 1085-1 103

l 5 E.g., Treaty of Miinster of October 24, 1688 between France and the Holy Roman Empire, part of the Peace of Westphalia that ended the Thirty Years' War, which specifies exactly what fortifications (on the Rhine) have to be destroyed completely (Art LXXXIII) See also the Treaty of Utrecht of April 12, 1713, which provided inter alia for the razing of the fortifications of the City of Dunkirk (Art IX) and the so called 'Third Barrier Treaty' of November 15, 17 15, between the Emperor and Spain and Great Britain, and the Netherlands,

a minor part of which provided for the complete destruction of the Li&ge fortifications and the castle of Huy (Art XXVII) On neutralisation see e.g., 'Act signed by the Plenipotentiaries of Austria, France, Great Britain, Prussia, and Russia Conveying Recognition and Guarantee of the Perpetual Neutrality of Switzerland and of the Inviolability of its Territory', November

20, 181 5 Also Belgium (Treaty between Great Britain, Austria, France, Prussia and Russia,

on the One Part, and the Netherlands, on the Other, April 19, 1839) and Luxembourg (Treaty

of London between Great Britain, Austria, Belgium, France, Italy, The Netherlands, Prussia, and Russia, Relative to the Grand Duchy of Luxembourg, May 11, 1867) were made neutral

In the case of Luxembourg, demilitarisation for the purpose of neutralisation was part of the Treaty; pursuant to Art V of the Treaty, the King of the Netherlands, Grand Duke of Luxembourg, engaged to demolish the Fortress of the City of Luxembourg directly after the King of Prussia had withdrawn his troops from said Fortress (pursuant to Art IV of the Treaty) Under the Treaty of Paris, March 30, 1856, which marked the end of the Crimean War, the Black Sea was neutralised In an Annex to this Treaty, which was to be considered

an integral part of it (see Art XIV of the Treaty of Paris), Russia and Turkey limited their naval forces in the Black Sea to six 'heavy' steamships and four light steamships or sailing vessels each, without however (unlike the Rush-Bagot Agreement of 1817) addressing the armaments of these warships It is noteworthy that the Treaty of Paris established two Commissions (see Arts XVI and XVII of the Treaty) mainly for the purpose of securing free navigation on the Danube (these Commissions had no role or tasks whatsoever in arms control) As late as 1920, the neutralisation and demilitarisation of Spitzbergen took place See Art IX of the Treaty between Great Britain, Denmark, France, Italy, Japan, the Netherlands, Noway, Sweden, and the United States of America, relative to the Archipelago

of Spitzbergen, February 9, 1920 A comparable Convention, relating to the non-fortification and neutralisation of the Aaland Islands (which had been demilitarised already - at the time when the islands belonged to Russia - by the 1856 Treaty of Paris between France, Britain and Russia), entered into force on April 6, 1922 It prescribes the absence of military, naval or military aircraft establishments or bases of operations in the zone (Art 2) Finland is allowed

in exceptional circumstances to keep internal order in peacetime by armed force (Art 4) and

in times of war special rules apply which, inter alia, allow Finland to lay mines (Arts 6 and 7) See Dupuy & Hammerman (1973), p 16, 36-47 and 104-107 and see Goldblat (1994), p 272-275

the sphere of arms control, such as the prohibition of fortification and the numerical limitation of a standing army or of a category of weapons.16

As new and even deadlier weapons appeared in the 19th century and the beginning of the 20'' century, there were also efforts to outlaw specific means of war that seemed especially inhumane." These efforts, of which the most important results came fi-om the well-known Hague Peace Conferences

of 1899 and 1907, focused on those weapons that seemed to cause unnecessary suffering or seemed to be indiscriminate in their effects, such as expanding bullets, chemical agents, and air bombardment.'* At the Second

l 6 See the Treaty of Kutchuk-Kainardji, a Peace Treaty between Russia and the Ottoman Empire, July 21, 1774, that prohibited the Ottoman Empire (Turkey) from fortifying, garrisoning, or sending any military personnel into the Crimea (Art 111) See further 'Treaty concluded at Paris between France and Prussia for the Regulation of War Contributions, the Occupation of Three Fortified Places, and the Recognition of the Kings of Spain and of Naples', September 8, 1808 Pursuant to secret, so-called 'Separate Articles' to this Treaty, the King of Prussia assumed the obligation of not maintaining for ten years more than 42,000 troops as specified in Separate Article 1 See also the Rush-Bagot Agreement, April 28-29,

18 17, which reduced, limited and equalised the naval forces present on the Great Lakes of Great Britain on the one hand and the United States on the other in order to stop the naval arms race that was going on there Pursuant to the Notes, exchanged between Charles Bagot

of Great Britain and Richard Rush of the United States, the naval force to be maintained upon the American lakes was to be confined to one vessel not exceeding one hundred tons burden and armed with one eighteen pound cannon on lake Ontario, to two vessels not exceeding like burden each and armed with like force on the Upper lakes and on the waters of lake Champlain to one vessel not exceeding like burden and armed with like force All other armed vessels on these lakes were to be dismantled, and no other vessels of war were there to be built or armed See Dupuy & Hammerman (1973), p 26-28, 36-37 and 39-41

l' As Martin (1952) observes (p 29 and 54), this was the era in which governments were concerned with the humanisation of war rather than its prevention One example is the St Petersburg Declaration on Exploding Bullets, December 11, 1868, which can be considered

an early effort on qualitative arms control or simply part of the long effort to reduce unnecessary brutality and suffering in warfare An exception to this general emphasis on humanitarian considerations was the Argentine-Chilean Convention on Limitation of Naval Armaments of May 28, 1902, which was to establish a just balance between the fleets of said States The two Governments bind themselves not to increase their naval armaments during a period of five years, without previous notice; the one intending to increase them shall give the other eighteen months' notice (Art 11) This Convention was clearly meant to secure a 'balance of power' and stop (for at least five years) a naval arms race (the Governments desist from acquiring the vessels of war then being built for them in Italy and England, and from henceforth making new acquisitions (Art I)) See Dupuy & Hammerman (1973), p 47-48 and 58-59

'* The First Hague Conference, which convened on May 18, 1899 was called (by Russian Czar Nicholas 11) to consider, first, arms limitation, and, second, peaceful settlement of international disputes It reached no agreement in either field The only results were Declarations on expanding bullets and asphyxiating gases See Declaration (IV,3) Concerning Expanding Bullets Signed at The Hague, July 29, 1899 The Contracting Powers, Signatories

to this Declaration agree to abstain from the use of bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core

or is pierced with incisions The Declaration, like the St Petersburg Declaration it supplements, is only binding for the Contracting Powers in the case of a war between two or more of them The Contracting Powers, Signatories to Declaration (IV,2) concerning

Hague Conference the only accomplishments in the field of arms control were a Declaration prohibiting discharge of projectiles from balloons and a Convention relative to the laying of automatic submarine contact mines.19 Perhaps the most important accomplishment of the Hague Conferences was the recognition of the general rule that the right of belligerents to adopt

means of injuring the enemy is not unlimited (Art 22 of the Hague

Conferences on the Laws of Land Warfare) In the period between the Peace Conferences and the conclusion of the Covenant of the League of Nations, the idea of arms control 'rested quietly in the depository of lost causes'.20

Asphyxiating Gases signed at The Hague, July 29, 1899, agree to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases Also this declaration is only binding on the Contracting Powers in case of a war between two or more of them The voeux, or recommendations, in the Final Act of the First Hague Conference that are important to the purpose of arms control and disarmament, are the following: (3) The Conference expresses the wish that the questions with regard to rifles and naval guns, as considered by it, may be studied by the Governments with the object of coming

to an agreement respecting the employment of new types and calibres; (4) The Conference expresses the wish that the proposal, which contemplates the declaration of the inviolability

of private property in naval warfare, may be referred to a subsequent Conference for consideration; (6) The Conference expresses the wish that the proposal to settle the question

of the bombardment of ports, towns, and villages by a naval force may be referred to a subsequent Conference for consideration Furthermore, the Convention (11) on Laws of Land Warfare of the First Hague Conference, July 29, 1899, prohibited, inter alia, the employment

of poison or poisoned arms (Art 23(a)) and the employment of arms, projectiles, or material

of a nature to cause superfluous injury (Art 23(e)) It furthermore prohibited the attack or bombardment of towns, villages, habitations or buildings which are not defended (Art 25) Another Convention on Laws of Land Warfare also resulted from the Second Hague Conference However, the provisions of this Conference (IV) of October 18, 1907, are almost similar to the ones of the First Hague Conference The Contracting Powers to the Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons, October 18, 1907 agreed to prohibit the discharge of projectiles and explosives from balloons or by any other new methods of a similar nature The Convention Relative to the Laying of Automatic Submarine Contact Mines, October 18, 1907 is quite interesting In its preamble, the Contracting Powers express the view that although the existing position of affairs makes it impossible to forbid the employment of automatic submarine contact mines, it is nevertheless desirable to restrict and regulate their employment in order to mitigate the severity of war and

to ensure, as far as possible, to peaceful navigation the security to which it is entitled, despite the existence of war[;] The provisions of the Convention do not apply except between contracting powers, and then only if all the belligerents are parties to the convention (Art 7) Both the Declaration and the Convention (Art I l ) were meant to be binding for seven years, until the close of the Third Hague Conference, which was to be called in seven years but which was never held due to the outbreak of the WW I See Dupuy & Hammerman (1973), p 59-70

20 See Martin (1952), p 3 1 One noticeable exception in this period was the Lodge-Hitchkock Joint Resolution of the US Congress, which called for the appointment of a commission to consider the expediency of utilising existing international agencies for the purpose of limiting the armaments of the nations of the world by international agreement, and of constituting the combined navies of the world as an international force for the preservation of universal peace See 'Joint Resolution to Authorise the Appointment of a Commission in relation to Universal Peace', June 25, 1910 See also Dupuy & Hammerman (1973), p 71

4.3 The impact of WWI on arms control

The impact of WW I with its extraordinary number of casualties (over 8,500,000 men of all nations involved had been killed by the end of the war) and the horror and massive destruction resulting from the employment of all kinds of new weapons, among which the aeroplane and the tank, the rapid- firing machine gun, high-explosive artillery shells and poison gas, gave a new and strong impetus to arms control efforts

During the whole inter-war period, there was a prevailing pre-occupation with the problem of how to maintain peace and prevent war by coherent means comprising both adequate security guarantees as well as arms limitation- and disarmament measures In the famous 'Fourteen Points' of

US President Wilson, who had called for disarmament as part of the post- war settlement even before the USA entered WW I, the relationship between security and arms control was touched upon as part of the programme for world's peace in the following manner: 'N Adequate guarantees given and taken that national armaments will be reduced to the lowest point consistent with domestic safety'.21 The last of the Fourteen Points called for a general association of nations, formed under specific covenants for the purpose of affording mutual guarantees of political independence and territorial integrity The Covenant of the League of Nations was the embodiment of this general association and its disarmament article bore the traces of the influence of the Fourteen Points' programme.22

But before any serious discussion of arms control would become feasible, the path first had to be cleared by outlawing war as a means of pursuing national policy and as a way of settling disputes

4.4 The legality of war and the emergence of substantive arms control law

With the Peace of Westphalia (1 648), the European States intended to create

a system which would be stable and permanent It was on this basis that positivist thought on the law of nations developed The fundamental distinction between the 'necessary law of nature' and 'the voluntary law of nations' was adopted It was only with respect to the former that the

21 Address of President Woodrow Wilson to a Joint Session of the Congress, January 18,

191 8 The Fourteen Points deal mainly with measures towards openness and peace (Points I-

V) and settlements with regard to different States (Russia, Belgium, France, Italy, Austria- Hungary, Rumania, Serbia, Montenegro, Turkey, Poland; Points VI-XIII) See Dupuy & Hammerman (1973), p 79-80

22 See Art 8(1) of the Covenant of the League: 'The Members of the League recognise that the maintenance of peace requires the reduction of national armaments to the lowest point consistent with national safety and the enforcement by common action of international obligations' Only after much debate had the original phrase 'domestic safety' (such as in Wilson's Point IV) been replaced by the wording of the Article It was reasonable that enough national armed strength be maintained to permit joint action against aggressors See Dupuy & Hammerman (1973), p 8 1

question of the justice of a war could be raised The voluntary law of nations did not inquire into the intrinsic justice of wars since no nation could assume the functions of a - Since the distinction between just and unjust wars was rejected, war became the supreme right of sovereign States and the very hallmark of their sovereignty The and the 1 9 ~ century were dominated by an unrestricted right of war and the recognition of conquests, qualified by the political system of Europe at the time The majority of writers during the 19& and the beginning of the 20* century considered war as an act entirely within the uncontrolled sovereignty of the individual The discretion of States in this matter was portrayed as unfettered: States could 'resort to war for a good reason, a bad reason or no reason at

In the latter part of the 1 9 ~ ~ century, war was regarded as a means of obtaining redress for wrongs in the absence of a system of international justice and sanctions Yet there were also new trends in favour of peacehl settlement of disputes.26 War gradually came to be considered as a means of last resort after recourse to available means of peaceful settlement had failed This view of war as a last resort was strengthened by the increasing favour shown to peaceful means of settling disputes in the period preceding

WW I, culminating in the two Hague Peace Conferences Although the Hague Conferences did not result in the setting up of an adequate and comprehensive international system for the peaceful settlement of international disputes, they did mark the beginning of the attempts to limit the right of war and they were the first steps taken designed to somewhat restrict the freedom of war in general international law through multilateral treaties Still, States regarded the liberty to go to war as the general rule, albeit that they were free to assume an obligation not to resort to war in their particular relations with other States

The first significant step taken to curtail the freedom of war in general international law was the creation of the League of Nations The Covenant

of the League contained no clear and general prohibition of war, and war

23 AS Dinstein observes, the postulate that the two belligerents in war may simultaneously rely

on the justice of their clashing causes, and that they will be equally right, brought the just war doctrine in international law to a cul de sac See Dinstein (1994), p 65

24 Cf: Henkin (1995), p 110: "Under traditional law, forcible intervention was illegal in time

of peace ( .) States could also abandon peace and the regime and law of peace and go to war War was not illegal and indeed had a law of its own" Most international lawyers conceded openly that "[wlith the inherent rightfulness of war international law has nothing to do" See Dinstein (1994), p 66 and 72: "Subsequent to the virtual demise of the just war doctrine, the predominant conviction in the lgth (and early 2oth) century was that every State had a right - namely, an interest protected by international law - to embark upon war whenever it pleased"

Briggs (1952), p 976 See also Alexandrov (1996), p 10; Dinstein (1994), p 72

26 E.g Arbitration began to re-emerge in earnest The Alabama claims, Behring sea fisheries dispute, British-Venezuelan, Chilean-Argentinean, and Canadian-Alaskan boundary disputes were all submitted to neutral arbitration See Franck (1995), p 253

was thus tacitly permitted as a means of settling disputes But even though there was no total prohibition of war in the Covenant, its qualification of the right to go to war was much more comprehensive than anything else in place

in the international law of that period The main thrust of the Covenant was not so much to prohibit the resort to war as to highlight the obligation to first resort to a procedure for peaceful sett~ement.~' The Covenant justified war in certain cases: as a means of settling a dispute, as a remedy in international law, and as a means of enforcing the law The Covenant thus made a distinction between legal and illegal wars, implying that the use of force was illegal when directed at conquest and unjustified acquisition War,

as well as the use of force short of war, were considered violations of the Covenant if the means for pacific settlement had not been exhausted Wars

of aggression could never serve as a means of settling international disputes,

as was expressed in several resolutions of the League of Nations Assembly

At the heart of this view lay that the concern of the Covenant was not war but aggression.28

The idea of legal limitation of the complete freedom of armament of States paved the way for the development of substantive rules of arms control law The idea of illegality of war, which was first expressed by the 'Treaty Providing for the Renunciation of War as an Instrument of National Policy' (Pact of Paris or Kellogg-Briand Pact), signed in Paris on August 27, 1928, gave a strong impetus to and was a justification for the coming into being of rules of arms cont~-oL2' The right to arm was a corollary to the right to wage

27 This basic idea can already be identified in the initial 'League to Enforce Peace' plan of

1915 upon which the Fourteen Points of President Wilson were indirectly based One of the objects of the League to Enforce Peace, as interpreted by the 'Executive Committee' of the League to Enforce Peace, was that 'the Signatory Powers shall jointly employ diplomatic and economic pressure against any one of their number that threatens war against a fellow signatory without having first submitted its dispute for international inquiry, conciliation, arbitration or judicial hearing, and awaited a conclusion, or without having in good faith offered so to submit it They shall follow this forthwith by the joint use of their military forces against that nation if it actually goes to war, or commits acts of hostility, against another of the signatories before any question arising shall be dealt with as provided in the foregoing' See Marburg & Flack (eds.) (1920), p 1-2

28 Pursuant to Art 10 of the Covenant, the Members of the League undertake to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members of the League Accordingly, there were attempts to explicitly declare the illegality of 'wars of aggression', e.g by Art 1 of the 'Draft Treaty of Mutual Assistance' of 1923

29 XCIV LNTS 57 (1929) Before the outbreak of WW 11, the Pact had 63 contracting parties,

a record number for that period An earlier attempt to close the gaps left by the Covenant vis- A-vis the right to resort to war was made by the 'Geneva Protocol on the Pacific Settlement of International Disputes' (1924) In Art 2 of this Protocol, the contracting parties agreed 'in no case to resort to war', except in resistance to aggression or with the consent of the League's Council or Assembly Art 2 was intended to abolish the general right to go to war, but the Geneva Protocol never entered into force and therefore war did not become illegal in principle until the Pact of 1928 See Dinstein (1 994), p 80-8 1

war as an instrument of national policy Now that war was made illegal, there was room - albeit not undebated - for arms control as a means to securing international peace and security At least, in theory As was clearly demonstrated by the total failure of the World Disarmament Conference held in Geneva from 1932 to 1936, the conceptions of the role of war in society have constantly impeded the achievement of a significant evolution

in the field of arms control.30

The Pact of Paris prohibited war as a national policy instr~ment.~' Self- defence was clearly not meant to be prohibited The Pact did not just renounce war, but allowed States to use force solely in self-defence by setting up mechanisms and procedures for States to comply with before resorting to war Of course, such mechanisms and procedures could only work in an organised society of States and hence emphasised the significance of the Pact within the system of a world organisation: the League of Nations and later the UN Through the 1934 'Budapest articles of interpretation' of the Pact of Paris, it became clear that the Pact was also intended to prohibit the threat to resort to armed force; measures short of war were prohibited and the notion of 'threat' was explicitly introduced, while the right of collective self-defence was explicitly recognised.32 Efforts were made to bring the Covenant of the League in harmony with the Pact of Paris; under the Covenant resort to war was still permitted as a means of settlement of disputes, and it was recognised that the machinery of the League was essential for the enforcement of the obligations under the Pact

of Paris The proposals for the amendment of the Covenant aimed to prohibit the resort to war However, many members made their ratification

of the proposed extension of their obligations conditional on the entry into force of the 'Convention for the Reduction of Armaments', that was being negotiated in the World Disarmament Conference, and, as that Conference failed, the question of bringing the Covenant into harmony with the Pact of Paris remained unsettled The Pact, although it has never been terminated, has now been superseded by Art 2(4) of the UN Charter

The importance of the establishment of a general prohibition to resort to war

as a legally binding norm (as it occurred for the first time in the Pact of Paris) can hardly be overestimated For only after this norm had been firmly

30 For example, in the opinion of the British leaders who were preparing for the Geneva Disarmament Conference, war was not an evil in itself: "War is unavoidable Since war is the supreme test of a nation, and victory its supreme interest, nothing counts more than strong armaments and a developed military spirit." See P Noel-Baker, as cited in Nastase (1 988), p

121

31

Under the Covenant of the League, war could also be employed as a means of redress for the maintenance of international law In that case, war would be employed as an instrument of international policy and would therefore not be prohibited by the Pact of Paris See Dinstein (1994), p 83

32 Alexandrov (1996), p 64 A State that violated the prohibition to resort to war could of course not invoke the same prohibition if it endured a counter-attack in response

set, it was clear when an attack (resort to armed force) was to be considered illegal.33 And, only after the norm on the illegal use of force had been set, a 'trigger-point' for the right to assistance could be established Therefore, from that moment on, it became clear under what circumstances a State would be entitled to (military) assistance, viz as soon as that State was under illegal attack In the inter-war period, the conviction grew that arms control would only be feasible if a strict and reliable system of collective assistance in cases of unlawful resort to force - a system of collective security - would be made to operate effectively

Thus, the legal relationship between peace (taken here as the absence of war), security and arms control can be described as such: after (I) the standards for maintaining peace in accordance with international law had been set, there was (2) room for an international security system, which in turn paved the way for (3) arms control measures Since 1945, (I) is formulated in the UN Charter, especially by its Articles 2(4), 42 and 5 1; (2)

is embodied in the collective security system of the UN Charter, especially

in its chapters V1 and VII, as well as in regional arrangements; and (3) is formed by the legal instruments that, as a whole, constitute the law of arms control

33 After WW 11, the Nuremberg Tribunal held that the Pact of Paris provided a sufficient basis for the application of the principles in the Nuremberg Charter The Tribunal held that the Pact

of Paris was violated by Germany in all cases of aggressive war charged in the indictment For the judgements of the Nuremberg Tribunal, see 41 AJIL 172-333 (1947)

2

The place of the law of arms control

in the international system

1 Introduction

This chapter will first portray arms control as a concept within the larger hamework of the international system for the maintenance of international peace and security Then, the subject matter of this study, the law of arms control, will be introduced and defined as a special field of international law Next, rules of international law outside the law of arms control pertaining to the armaments of States will be briefly dealt with As such, this chapter means to provide insights into the place of the law of arms control in the system of general international law and international politics

2 Origins of and incentives for arms control in the international system

2.1 The international system and military power

The current international system is horizontal consisting of some 190 independent States that are, in legal theory, all equal in that they all possess the characteristics of sovereignty, and do not have to recognise anyone in authority over them (par in parem non habet imperium).34 Within the

international system, autonomy of the constituent States is a primary value Autonomy in general means that every State (through its government) is permitted to decide for itself its internal political, economic, social, cultural system and its domestic policies, as well as its foreign policy and its relations with other Achieving and maintaining the maximum autonomy possible for every State has been a primary purpose of

34 See, for example, the concise wording of Art 4 of the 'Montevideo Convention on Rights and Duties of States', adopted by the Seventh International Conference of American States (Signed at Montevideo, December 26th, 1933, 165 LNTS 19 (1936), at p 25): "States are juridically equal, enjoy the same rights, and have equal capacity in their exercise The rights

of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law"

35

See e.g., Nicaragua Case (1986), p 108 (par 205)

international law.j6 Though the independence of States remains the ideal, the international system is characterised by a tangle of complex interdependencies In the hectic interplay of world affairs the need is felt for

a regulatory framework, and international law fulfils that requirement

As a starting-point, it can be maintained that sovereign States can only be bound to observe international law when and to the extent that they freely consent to be bound This point reflects an important characteristic of international law: there is no executive or governing entity to see that those who break the rules they consented to are ~orrected.~' The use of force can

be considered as the ultimate means to correct wrongful behaviour and to enforce compliance with international rules, but force may also be used in pursuit of the national political aspirations of one State going against the interests of other States The legal fiction of the equality of States cannot and does not take account of the unequal division of (military) power between the States in the international system To guarantee that the interdependence of States does not lead to a loss of their independence, the use of force has been generally outlawed and has been centralised by conferring it on the international community as a whole For this purpose, the system of collective security as formulated under the Charter of the UN has been established The UN Charter declares peace to be the supreme value, to secure not merely State autonomy, but fundamental order for all The system involves the paradox of war for peace - peace being achieved through the collective capacity and will to resist.38 Every infringement of the subjective right of a State not to be illegally attacked by other States constitutes a problem, not just for the State directly affected but for all members of the international community alike The system of collective security thus implicitly acknowledges that security is indivisible, in that an attack on one is of concern to The system is meant to protect national interests and sovereignty in a collective manner and to thereby lead to the strengthening of international security

The collective security system aims at a broader objective than just the absence of war by taking into account the wider requirements of international peace and security An 'armed peace' is not sufficient to ensure security and therefore armed peace is insufficient to attain the purposes and

See Henkin (1995), p 109 Cf: also Art 2(1) UN Charter

37 The ultimate authority of the UNSC as the paramount body in world enforcement action needs to be recognised This organ, however, cannot be said to function as a world-wide correction and enforcement force, due to mainly political obstacles

principles of the UN The concept of the system of collective security is based on the renunciation of force, except in self-defence, on commitment to the peaceful settlement of international disputes and on the obligation to support collective measures, both military and non-military, to defeat any threat to the peace, breach of the peace, or act of aggression.41 The core substantive principles of the UN, the prohibition of the threat or use of force (Art 2(4) UN Charter) and the complementary general provision to settle international disputes peacefully (Art 2(3) UN Charter), are the basic legal pillars of the collective security system The Charter provides that disputes shall be settled peacefully in such a manner that international peace and security, and justice, are not endangered and prohibits the threat or use of force by States in their international relations against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the UN The 'inherent' right to use force in individual or collective self-defence against an armed attack is not impaired by the Charter system (Art 5 1 UN Charter), so that it

is perfectly legitimate for a State to be a member of a military alliance that is based on the right to collective self-defence (usually referred to as 'assistance') against any potential aggressor in case one of the member States of the alliance becomes the victim of aggression International organisations based on the principle of regional assistance against aggression can be found in all major regions of the world (America, Africa, Europe, Southeast Asia, the Middle ~ a s t ) ~ ~ Note, however, that such defensive organisations cannot confer more rights on their member States than those States individually have under the Charter system: in the event of

a conflict between the obligations of the Members of the UN under the Charter and their obligations under any other international agreement, their obligations under the Charter shall prevail (Art 103 UN Charter)

One of the instruments for strengthening the regime prohibiting the use of force in international relations is arms control Arms control has been

40 See Goodrich & Hambro (1949), p 93

41 CJ: Art 39 of the UN Charter See United Nations (1 986), p 9 (par 36)

42 For the Middle East region see the 'Pact of the Arab League', in: 39 AJIL suppl 266

(1945), esp Art 6; for the American region see the 'Inter-American Treaty on Reciprocal

Assistance', in: 43 AJIL suppl 53 (1949), esp Arts 3 3 , 8, and 9; for the (Western-)

European region see the 'Treaty on Economic, Social and Cultural Collaboration and

Collective Self-Defence', in: 43 AJIL suppl 59 (1949), esp Arts V and V1 as modified by the 'Protocol Modifying and Completing the Brussels Treaty' of 23 October 1954, as well as the '(tram-) Atlantic link' in the form of NATO, which was established by the North Atlantic

Treaty, in: 34 UNTS 243 (1949), esp Art 5; for the African region see the 'Charter of the

Organisation of African Unity', in: 58 AJIL suppl 873 (1964), esp Art II(lc, 2 f ) and III(4); for the Southeast Asian region, see the 'Southeast Asia Collective Defence Treaty', in: 60

AJIL suppl 646 (1966), esp Art IV For the Eastem-European region the now obsolete

'Treaty of Friendship, Co-operation and Mutual Assistance (Warsaw Pact)', in: 219 UNTS 3

(1955), contained (in Art 4) a provision on immediate assistance similar to the one in Art 5

of the North Atlantic Treaty

explicitly linked to the goals of the elimination of the danger of war, in particular nuclear war, as well as to ensuring that war is no longer a method

of settling international disputes and that the threat and the use of force are eliminated from international life as provided for in the Charter of the UN.43 Still, under the Charter the control or reduction of armaments is only a secondary means, which should follow, and not precede, the setting up of a workable system of security The Charter does not set forth any ultimate goals with regard to arms control Instead, the few references to arms control

in the UN Charter only recognise the importance of the establishment of a system for the regulation of armaments in order to promote the establish- ment and maintenance of international peace and security with the least diversion of the world's human and economic resources for armaments (see

Art 26 Charter) Arms control is not regarded as a direct means to attain collective security, but as part of another important task of the UN Organisation, viz the prevention of waste of economic resources.44 The Charter disapproves of the investment of precious labour, material, and money in such 'wasting assets' as armaments Furthermore, the UNGA may make recommendations to the Members or to the UNSC or to both with regard to the 'principles governing armaments and the regulation of armaments' (Art 11 Charter) The notion of 'regulation' discloses no bias to either a high or a low level of armaments There only is a tendency to disapprove of the lack of regulation and the arms race, albeit more out of economic than out of political concerns

In the theory of the collective security system, the UNSC has both the legal authority and the moral suasion to sanction the elimination of doomsday weapons in the hands of irresponsible members of the international

Chapter V11 of the Charter grants the UNSC a broad authority and wide discretionary powers, enabling it (again, in theory) to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace.46 It is common knowledge that the collective security system in the

UN Charter has in practice never functioned as envisaged Cold War opposition and a general lack of political will to co-operate have blocked consensus in the UNSC for almost forty-five years, and no stand-by armed 'UN forces' have ever been made available to the LJNSC.~~ These

43 See SSOD-I (1 978), par 19; SSOD-I1 (1 982), par 62

44 Schneider (1954), p 9 See also the Moscow Four-Nation Declaration on General Security (30 October 1943), preamble: "Recognising the necessity of ensuring a rapid and orderly transition from war to peace and of establishing and maintaining international peace and security with the least diversion of the world's human and economic resources for armaments; ( .)"

45 See Lewis & Joyner, (1991), p 309; Smith (1994), p 459

46 See articles 1(1), 24(1), and 39-42 of the UN Charter

47 It was originally envisaged in art 43 of the Charter that Member States made available to the UNSC, on its call and in accordance with a special agreement or agreements, armed

circumstances have to a large extent precluded the UNSC from fulfilling the role of central decision-maker which it was accorded by the charter in preventing and countering aggression and in maintaining or restoring international peace and security

The role of the UN in arms control has struck a similar fate After WW II,

the confrontation between East and West brought about a bi-polarization of the world This promoted distrust and insecurity which in turn triggered an arms-race and the 'action-reaction' cycle, which proved to be a major factor

in continuing this race The bipolar order was determined by the security

the 1960s premised upon the containment of communism (Truman and Eisenhower doctrines), while later it was dominated by the doctrine of dktente (Kissinger-Nixon doctrine) and in more recent times by the 'encroachment' doctrine of the Reagan era The SU on the other hand, claimed the right to exercise influence over security zones contiguous to its territory, effectively extending its land border to prevent an invasion from the West It also claimed, under the Breznjev doctrine, the right to defend the gains of international socialism Despite ideological divisions, both sides found the power necessary to sustain these claims and policies in the nuclear capabilities of the Eastern and Western Apart fiom the fact that Cold War opposition proved to be an impregnable stumbling-block on many occasions to arms control as well, the Non-Aligned Countries on the one hand and the States within (nuclear) alliances on the other hand also strongly opposed each other, which has severely hampered international negotiations on arms control.49

After the dissolution of the SU and the end of the Cold War in 1991, progress has been made in the field of arms control, both bilaterally as well

as multilaterally It has been much contended that a New World Order would be on the verge of emerging The post Cold War situation accelerated

a tendency to move UN organs to take action Rather optimistically, the last decade of the twentieth Century was proclaimed the 'Decade of International Law' by the UNGA.~' The successful collective effort to

forces, assistance and facilities, including rights of passage, necessary for the purpose of maintaining intemational peace and security Such agreements, which are a prescribed part of the full implementation of the system for intemational peace and security under the UN Charter, have never been concluded

48 See Nagan (1999), p 492-494 and see LysCn (1990), p 18 For a historical overview, see Craig & George (1 995), p 102- 130 On dktente see also McWilliams & Piotrowski (1 997), p 225-241

49

That is despite the fact that both the Non-Aligned and the 'Aligned' States subscribed to the Final declaration of the UNGA Special Session on Disarmament, which declares that 'in accordance with the Charter, the UN has a central role and primary responsibility in the sphere of disarmament' (SSOD-I (1978), par 27) On the opposition between the several 'blocs' in nuclear arms control negotiations, see Bourantonis (1993)

See for the programme of action for the period 1997-1999, UNGA Res 511157, 16

counter aggression in the (second) Gulf War (1990-1991) appeared to provide evidence that the positive changes in international relations would indeed lead to unprecedented progress in the maintenance of international peace and security However, precisely during this last decade, the outer limits of the system of collective security have been severely put to the test Presumably as a result of the absence of Cold War opposition, the threat of force and even the actual use of force were employed on a number of occasions, primarily by the US (and some of its allies), as the ultimate means to secure political interests without UNSC approval.5' In the European region, NATO has adopted 'new' security tasks and has assumed far-reaching enforcement powers, which were not always supported by an express mandate from the U N S C ~ ~ It is clear that the contemporary international community still finds itself far from any centralised system of legislation and law enforcement by specific organs modelled after that of States The threat of force even appears to be re-gaining the acceptance of States and international organisations as a legitimate means of exerting pressure for political purposes in international relations Throughout this study, it will repeatedly come to the fore that arms control is closely related

to the maintenance of national, as well as international, peace and security

At this point, it suffices to note that disrespect for the basic rules of the collective security system in the long term can only have negative effjects on the international arms control process

2.2 The (political) concept of arms control

Arms control can be described as an evolutionary process.53 Beginning with the development of a politically favourable environment, followed by a political commitment to negotiate, sometimes complemented by 'politically

December 1996 The closing date of the Decade of International Law was 17 November 1999,

see UN Press Release SGiSMl7222, 18 November 1999 See also the report of the UNS-G on

the Decade of International Law, A/54/362,2 1 September 1999

51 The application of the use of force without a supporting UNSC Resolution can be witnessed in the case of Iraq (enforcement of 'no-fly zones' over parts of northern and southern Iraq from 1992 onwards, and Operation Desert Fox of mid-December 1998) as well

as in the bombings of Sudan and of Afghanistan by the US on 20 August 1998 In the case of Iraq, non-compliance with obligations of arms limitation were at the basis of the use of military power in Operation Desert Fox

52 With regard to the civil war in Kosovo, NATO has repeatedly threatened to use military force in case Serbia would not take part in peace negotiations with the Kosovo Liberation Army (KLA) On 24 March 1999, NATO commenced its mission 'Allied Force' consisting of air bombardments on the Federal Republic of Yugoslavia (FRY), without any supporting UNSC Resolution whatsoever, a situation that lasted until 10 June 1999 Also 'on paper' NATO has assumed far-reaching powers The Alliance's Strategic Concept (1999) which refers to the security tasks of NATO (for the 21" century), mentions crisis management, including 'non-art 5 crisis response' operations, to be carried out by NATO even beyond the Allies' territory (par l 0 and 52)

See Marauhn (1997), p 25