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Right after I graduated, I interned with the Arms Control Association. It was terrific.

– George Stephanopolous
Host of ABC's This Week
January 1, 2005
November 2005
Edition Date: 
Tuesday, November 1, 2005
Cover Image: 

IRA Disarms After 36 Years

Erin Creegan

The provisional wing of the Irish Republican Army (IRA) has disarmed after a 36-year armed campaign for a unified Irish state, according to a Sept. 26 report by independent international observers.

Canadian General John de Chastelain, head of the Independent International Commission on Decommissioning (IICD), was invited to monitor IRA members’ Sept. 25 voluntary destruction of guns, ammunition, and explosives. The commission report found the disarmament effort to be complete. “We believe with confidence that the arms decommissioned represent the totality of the IRA arsenal,” said the commissioners in their Sept. 26 statement. The British and Irish governments established the IICD in 1997 to independently monitor the disarmament of paramilitary groups on each side of the Northern Ireland conflict.

British Prime Minister Tony Blair, whose administration has worked over the last few years to bring the conflict in Northern Ireland to resolution, expressed his confidence in the commission’s findings. “Successive British governments have sought final and complete decommissioning by the IRA for over 10 years.... Today it is finally accomplished,” said Blair.

According to commission press statements, the number of weapons destroyed corresponded to British and Irish government estimates. De Chastelain suggested in his Sept. 26 press conference that the amount correlated to a Jane’s Intelligence Review estimate of the IRA arsenal, which included 1,000 rifles, two metric tons of Semtex explosive, seven surface-to-air missiles, and two-dozen heavy machine guns.

Commission members noted in the Sept. 26 statement that there is further disarmament work to be done. “It remains for us to address the arms of the loyalist paramilitary groups, as well as other paramilitary groups, when these groups are prepared to cooperate with us in doing so.” The IRA was by far the largest existing Irish Republican paramilitary group, leaving only two small splinter groups still armed.

After the July 7 Islamic terrorist attacks on the London subway system, Blair made conciliatory gestures to the IRA to expedite an end to the armed conflict. Most notably, Sean Kelly, an IRA member who set off a bomb in Belfast in 1993 that killed nine Protestant civilians, was released from prison on July 27.

The next day, the IRA published a call to its members to give up their arms and peacefully pursue a united Ireland. “We now believe there is an alternative way to end British rule in our country” the leadership of the IRA wrote in An Phoblacht/Republican News.

This unilateral declaration to abandon violence follows promises made in the 1998 Good Friday Agreements. This Anglo-Irish accord created a power-sharing government in Northern Ireland and affirmed that any change in the status of the region would be determined democratically.

 

Witness for the Prosecution: International Organizations and Arms Control Verification

Edward Ifft

The late Charles Floweree, who worked on arms control issues for many years at the Department of State, once observed that “compliance is like a poorly crafted Act 3 that plays to a distracted and drowsy audience.”

If we continue his analogy, we might observe that Act 1 of the typical arms control drama would be the decision to seek a particular arms control agreement and the intense and careful interagency preparation that precedes the negotiation phase. Act 2 would be the actual negotiation, carefully monitored in Washington and carried out by a dedicated team of experienced professionals from several agencies.

Once the agreement is completed and enters into force, sometimes following long, painful debates in the Senate, it enters Act 3. Implementation may involve very professional, on-site inspection activities by the Defense Threat Reduction Agency, the smooth handling of notification requirements by the State Department’s Nuclear Risk Reduction Center, and diligent work by intelligence analysts in following relevant developments worldwide. Nonetheless, it would be fair to say that the attention of the policy community, as well as the nongovernmental arms control community, tends to turn quickly elsewhere. There is the general hope that nothing will go wrong with the agreement, and if something does go wrong, someone else will take care of it. If this has usually been the trend for the United States, it is even more so for most other countries.

Yet, the need for greater attention to plugging unintended loopholes in treaties, detecting and identifying violations, and assuring appropriate consequences for clear and deliberate violations has become painfully obvious. One need only look at the challenges the international community faces in proving and dealing with Iran’s failure to comply with its safeguards requirements under the nuclear Nonproliferation Treaty (NPT) or with North Korea’s announced decision to withdraw from the same accord.

What exactly the role of international organizations should be in this process and what responsibilities should fall to a state-party’s verification and compliance capabilities has been the subject of some controversy. In some cases, it appears that even the states-parties themselves do not agree on the capabilities and appropriate role for the implementation bodies to which they belong.

Some countries, such as the United States, have broad strategic interests, powerful technical capabilities, and vast analytical organizations to monitor agreements to which they are parties. Many countries have neither these responsibilities nor these resources. Instead, many countries must rely on the implementation organizations charged with carrying out most major arms control agreements, which vary greatly in abilities and scope. Finding an appropriate balance between states-parties and international organizations in carrying out verification and compliance responsibilities and bolstering the capabilities and responsibilities of international organizations should be high on the global arms control agenda.

In the arms control lexicon, “monitoring” is the gathering of data relevant to an obligation in an agreement. “Verification” involves a judgment, made at the political level, as to whether a party is complying with this obligation. In popular usage, however, “verification” is often used to indicate both functions. A monitoring and verification regime is intended both to deter violations from being committed and to detect violations that do occur. Such a regime should include mechanisms for consultation and clarification and for improving the viability and effectiveness of the agreement, as well as for the resolution of disputes. Enforcement mechanisms can provide incentives for compliance and sanctions for noncompliance. Most of the major modern arms control agreements have implementation, verification, and compliance organizations. It is important that there be a consistent view of the role of these organizations and that better use be made of their capabilities.

The Problem of Evidence

The first task in monitoring and compliance is gathering data or evidence. The United States is far ahead of any other country in its national technical means (NTM): satellites and air-, land-, and sea-based systems of many kinds. Other countries also have such systems, some of which have capabilities similar to those of U.S. systems and some of which can make unique contributions. International organizations have tended to lag behind, although some are beginning to benefit from the high-quality imagery now available commercially. France had sought to provide international organizations with good satellite imagery as early as the 1970s, but the proposal never got off the ground because of lack of support from the United States and the Soviet Union.

Still, international organizations, through their gathering of required data and through their on-site inspection activities, also have unique information. Some of this is published, some is shared only with member states, and some is closely guarded. An example of published data is the information on nuclear reactors gathered by the International Atomic Energy Agency (IAEA). Shared data is illustrated by the seismic and radionuclide data gathered by the Comprehensive Test Ban Treaty Organization’s International Monitoring System. An example of restricted information is the hidden identity of a country that has declared its possession of chemical weapons to the Organization for the Prohibition of Chemical Weapons (OPCW), which is a state-party’s right under the Chemical Weapons Convention (CWC).

Smaller countries have complained that they lack access to satellites and other technologies and believe the use of these national means by international organizations is unfair. However, smaller states may be underestimating their ability to contribute to collective compliance judgments. A suggestion has recently been made to change the phrase “national technical means” to “national means and methods” to emphasize that all states have access to some sources, many of them open, that can help solve compliance problems.[1]

The U.S. delegation made this argument during the Comprehensive Test Ban Treaty (CTBT) negotiations 10 years ago to those who complained that the United States had an “unfair” advantage because of its NTM. The United States pointed out that verification and monitoring should not be viewed as a competition but rather as a collaborative enterprise to which all can contribute in the search for truth.

In theory, diverse information from all of these sources could be relevant to making a correct compliance judgment and could be brought together to one all-wise decision-maker. In practice, this has proven difficult or impossible in the international context. Concern on the part of national intelligence services that “sources and methods” might be disclosed assures that a complete sharing cannot and should not ever happen. Some revelations regarding sources and methods may happen in exceptional circumstances, such as Adlai Stevenson’s use of satellite imagery at the United Nations during the Cuban missile crisis or the release of intercept tapes of communications involving Soviet fighter planes during the downing of the KAL airliner, but such cases will be rare. As we have seen subsequent to the September 11 attacks, U.S. intelligence and law enforcement agencies have difficulty sharing information among themselves, let alone with some international body.

A compromise that could be used more often might be to use national information to point international inspectorates toward suspicious facilities and activities without revealing how the information was obtained. Of course, the credibility of such “hints” would be less than if the reason for them were made clear, but all sides should be more open to such efforts. It would probably become clear in due course which sources of such suggestions were believable and which were not. Then, bodies such as the IAEA Board of Governors, the Executive Council of the OPCW, or even the UN Security Council and its special commissions would draw the appropriate conclusions.

In the run up to the invasion of Iraq in 2003, for example, the United States promised to provide the UN Monitoring, Verification, and Inspection Commission (UNMOVIC) with information that would incriminate Iraq regarding its alleged weapons of mass destruction activities. The United States failed in this effort, however, either because it only released partial information to UNMOVIC or because the information did not exist in the first place.[2]

In any case, it is clear in the aftermath of not finding weapons of mass destruction in Iraq that, as far as most of the world is concerned, conclusions reached by respected international bodies will be more credible than those reached by any single country.

In this connection, it is worth considering the CTBT as a model because it represents the most recent thinking of the international community, even though it has not entered into force. After some vigorous debate, the drafters of the CTBT agreed that requests for on-site inspections could be based on not only information from the International Monitoring System, but also on “any relevant technical information obtained by national means of verification in a manner consistent with generally recognized principles of international law.”

The Problem of Interpretation

After information is gathered, the problem arises of what it means. Both international organizations and individual countries have wrestled with this problem many times. Sometimes it turns out that there are differing interpretations of treaty language. This is always a potential problem when an agreement is written in more than one language. Many, but by no means all, compliance issues have been due to differing interpretations of language, changes in technology, or new developments.

Again looking to the example of the CTBT, it is encouraging that the problem of the uneven capabilities of countries to interpret data was dealt with seriously and constructively. The International Monitoring System, when completed, will have 337 facilities worldwide generating vast quantities of data from seismic, radionuclide, hydroacoustic, and infrasound sensors. Some countries, such as the United States, can handle all the raw data and are capable of doing their own analyses. Others want and need assistance. The International Data Center in Vienna, therefore, provides “data or products” generated in response to ad hoc requests by states-parties. It also will assist individual states-parties “at their request and at no cost for reasonable efforts, with expert technical analysis of International Monitoring System data and other relevant data provided by the requesting state-party.”

A level of difficulty even beyond data and its interpretation involves judgments regarding intentions. Iran is the obvious current example. Even if all the facts are clear and agreed, the issue of Iranian intentions is central to the problem of how to find a solution.

The CTBT provides a particular means of handling the issue of intentions. The treaty prohibits only the conduct of a nuclear explosion, not the preparations for such an event. This was made clear in explicit discussions of the issue during the negotiations and reflected the U.S. position. In the U.S. view, such preparations could be for the purpose of violating the treaty but might also allow states to be ready, if necessary, to withdraw and rapidly carry out activities that would have been illegal while still a party. Not only are preparations not illegal, clear evidence of apparent preparations is not even a legitimate reason for a request for on-site inspection. Therefore, we cannot establish a universal legal principle that intent to violate an agreement is itself a violation. This provides an interesting contrast to the current effort to close a dangerous “loophole” in the NPT, whereby a country could use a legal, peaceful nuclear program to put itself into a position in which it could withdraw and rapidly develop nuclear weapons.[3]

Because compliance is essentially a legal issue, there is a need for precision in how information and its interpretation are presented, especially if an informed public debate is desired. In particular, loose use of undefined terms such as “program” and especially “capability” is not helpful. If a country is said to have the “capability” to do something, the inference is frequently that it is in violation of some obligation, which may be quite misleading. For example, to say that a country has the capability to manufacture biological weapons sounds quite dire until one recognizes that this would be true of any country with a developed pharmaceutical industry. This problem occurred, for example, in recent U.S. comments regarding Cuba.[4] At least in recent years, the relevant international organizations, such as the OPCW, the IAEA, and UNMOVIC seem to have been quite careful in their language.

Who Decides Guilt or Innocence?

Bilateral and U.S. procedures

The question of who should decide whether noncompliance has occurred and, if so, how serious it is has proven to be more difficult than many would have expected. For the major agreements that were negotiated bilaterally—SALT, START, the Anti-Ballistic Missile Treaty, the Threshold Test Ban Treaty, the Peaceful Nuclear Explosions Treaty, the Strategic Offensive Reductions Treaty—commissions have been established in which the states-parties can discuss implementation and compliance issues. These commissions, which carry on their work in secret and can discuss classified information, have generally been effective. Some of them expanded their membership to include successor states of the former Soviet Union, depending on the agreement, but their procedures remained the same. Basically, in these fora, judgments about the compliance of a state-party are made by the other states-parties. The results of their work to improve the viability and effectiveness of their agreements are sometimes made public, for example, the Joint Compliance and Inspection Commission, which implements START, has issued more than 100 agreements and joint statements.

Inspection teams do not have the responsibility to make actual compliance judgments. Thus, they may identify an “ambiguity” but not a “violation.” This helps to make their work in the field less confrontational and recognizes that a compliance judgment may need information from all sources, not just what may be seen in the field at a particular place and time.

As far as U.S. decisions regarding compliance are concerned, procedures are well developed, and effective mechanisms exist to guarantee compliance. The State Department annually issues to Congress a report in classified and unclassified versions on compliance issues regarding U.S. concerns with respect to other countries and other countries’ concerns about U.S. activities.[5] These reports sometimes charge a “violation,” unlike the various international organizations, which generally confine themselves to discussions of “noncompliance.”

Multilateral

Most countries would readily agree with President George W. Bush that, “for international norms to be effective, they must be enforced.”[6] After all, the first principle of international relations is that agreements should be complied with (pacta sunt servanda); violations should be identified promptly, and appropriate responses taken. The question of who actually carries out these tasks, however, has proven somewhat elusive. In principle, each state-party has an obligation to make compliance decisions for itself, and the United States has stressed this point. In practice, the ability of states-parties to evaluate relevant information varies widely. For example, how is a state such as Bolivia to make an informed decision regarding technical aspects of activities alleged to be taking place in Iran? This has led many smaller states to rely on a relevant verification apparatus, an executive council, or whatever other body may be available, to make these conclusions for them.

The major multilateral agreements are not entirely consistent in their compliance approach and are more difficult to understand. Some have a governing body, some have verification regimes and organizations to carry them out, some have only review conferences, and some lack even that mechanism. They tend to have large memberships and slow and cumbersome procedures and sometimes operate by consensus. Their records of dealing with compliance issues tend not be encouraging, although in most cases the agreements they monitor are operating successfully.

At the top of the pyramid, with the authority to take actions regarding threats to international peace and security, stands the UN Security Council. Organizations created by the United Nations have a special character, in that their charters tend to be focused and their lines of authority clear. For example, the UN Special Commission and UNMOVIC were created by the Security Council to investigate and eliminate Iraq’s weapons of mass destruction.[7]

Between individual states and the Security Council stand executive councils, implementing bodies, review conferences, and so on, depending on the specific agreement. In all the agreements, the judgments of individual countries are made into a collective judgment at the level of the conference of states-parties, executive council, board of governors, or whatever body is specified by the agreement. This body can take action itself or, in some cases, refer the matter to the United Nations.

  • In the case of the CWC, the Executive Council has the power to consider “concerns regarding compliance, and cases of non-compliance.” In addition, the CWC “Conference [of States Parties] shall, in cases of particular gravity, bring the issue, including relevant information and conclusions, to the attention of the [UN]General Assembly and the [UN] Security Council.”

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  • In the CTBT, the Conference of States Parties and Executive Council are given similar powers and responsibilities, with the reference to the United Nations not distinguishing between the General Assembly and the Security Council.

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  • In the Conventional Armed Forces in Europe Treaty, there is no mention of resorting to the United Nations.

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  • In the CWC, explicit mention is made of the possibility of taking disputes to the International Court of Justice.

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  • The NPT is more subtle in that the IAEA does not have jurisdiction over all provisions of the treaty but does have jurisdiction over safeguards, which has been a key point of contention with regard to Iran and North Korea. For example, the IAEA Board of Governors in 2003 reported North Korean “non-compliance and the Agency’s inability to verify non-diversion of nuclear material subject to safeguards” to the Security Council and the General Assembly. However, these bodies have taken no action.

These international organizations are, of course, not actual parties to agreements. Unlike the decisions of the Security Council, their decisions are not binding on the states-parties. However, these organizations seem uniquely well qualified to make compliance judgments, both based on the terms of the agreements themselves and because they were created by the states-parties and possess special expertise on the subject matter involved.

An important caveat needs to be made. An international organization may not have all relevant information, some perhaps having been held back by individual states for valid reasons. Thus, even though an international organization may know enough to say that a state is in noncompliance, it should be careful about certifying that a state is in compliance. This is the familiar arms control dilemma about not being able to prove a negative because it may be that the relevant sites were not inspected or not inspected at the right time or the right people were not interviewed and so on—a valid principle that, if taken to extremes, will assure that compliance issues will never be resolved.

Given these limitations, if we expect that international organizations can be an effective witness for the prosecution, we must also recognize that they will sometimes find themselves in the role of witness for the defense. Thus, they may be able to conclude that they have found no evidence of some particular noncompliance that has been alleged. This, too, can be an important contribution to preserving the viability and effectiveness of agreements. Consequently, we cannot have it both ways, urging international organizations to avoid compliance judgments but then criticizing them if they do not issue a guilty verdict in cases about which we feel strongly.

After the Verdict

During the Cold War, arms control was plagued by overzealous enforcers who saw violations where there were none. Some people were too willing to see nuclear explosions in earthquakes, to see attempts to blind satellites in pipeline fires, to put forward worst-case analysis as if it were proven fact, and so on. Governments sometimes felt forced to make proclamations on compliance issues before all the data could be gathered and properly analyzed because of the furor created in the media by such claims. Now, however, the problem seems to be the opposite: a reluctance to face unpleasant or inconvenient compliance issues and devise appropriate responses.[8] Part of this problem, of course, is the dilemma of finding courses of action that will not make the situation even worse.

It is clear that not all violations are created equal. One category would be technical or unintentional violations, including failures to meet deadlines, submissions of incomplete or incorrect data, failure to pay required contributions, mistakes made by industry or military commanders in the field who do not fully understand their obligations, etc. A second category might be violations without great substantive significance but that become politically important. Such issues may be highlighted by the media or in Congress and force the hand of governments or organizations that would prefer to handle the situation quietly. The third category would be violations of real military significance, which could alter a strategic or regional balance or which could lead to a dangerous chain reaction. A more formal legal distinction would be to distinguish between minor violations and a “material breach.” The latter is defined by the Vienna Convention on the Law of Treaties as the unsanctioned repudiation of the treaty or “the violation of a provision essential to the accomplishment of the object or purpose of the treaty.”[9]

A source of some confusion about violations may have arisen because of the sudden popularity of “politically binding agreements.” This approach got a major boost with the treatment of sea-launched cruise missiles in START, in which the sides wanted to have some commitment and predictability without long-term, legally binding constraints.[10] The concept has the advantage of being easier to negotiate, is thought not to need rigorous verification, and avoids bruising ratification battles in parliaments. The distinction between “legally binding” and “politically binding,” however, is frequently lost on the public and the media. Such confusion regarding exactly what obligation is being undertaken was seen in the unpleasant debates during this year’s NPT review conference over the “13 steps” agreed to at the 2000 Review Conference.[11] Perhaps the word “binding” is an unfortunate choice; an alternative might be to return to the earlier formulation of something such as “parallel unilateral statements” to characterize good-faith commitments to do (or not do) something, but without undertaking a formal legal obligation.[12]

It is tempting to say that the world should have zero tolerance for violations of arms control agreements, just as zero tolerance policies for even seemingly trivial illegal actions have dramatically improved the safety and appearance of some urban environments. Even minor violations can set an undesirable precedent and create a permissive climate for more serious violations. Unfortunately, violations of the first category are so widespread that such a wide net would catch many countries, including the United States. Yet, the current benign neglect on the part of governments and international organizations toward such violations is not working either: consider the widespread failure to file required declarations under the CWC and Biological Weapons Convention, the failure to enact domestic implementing legislation, or the failure of states to conclude safeguards agreements with the IAEA. Perhaps a bigger dose of “name and shame” would help to clean up this situation without causing an overreaction.

Perhaps the highest priority in dealing with violations should be to persuade the offending state to cease its noncompliance. South Africa and Libya are encouraging examples of how this can happen. In some cases, one could use a concept often followed in civil cases, in which a party agrees to cease some activity, but without admitting guilt or accepting any punishment. In some cases, this could lead to a positive outcome while avoiding an overly moralistic approach. Some multilateral agreements have a “consultation and clarification” procedure and even those that do not could use one. Under such a procedure, the organization, or individual states, if appropriate, would make urgent efforts to clarify an ambiguous situation. Although this seems like an obvious approach, its use seems to be underutilized. Clearly, it is important that a lack of diplomatic relations with a suspected state should not be allowed to hinder such a dialogue. It also seems clear that such quiet diplomatic procedures should be exhausted before resorting to confrontational public charges of cheating.

If these “soft power” approaches fail, a variety of punishments are possible for violations, all the way from mild rebukes to economic sanctions to political sanctions to military action. Some multilateral agreements have built into them certain penalties: fines, loss of vote, or expulsion from the executive council. An analysis of what measures have been used to date is beyond the scope of this paper, but one could conclude that the efforts have been uneven and of mixed effectiveness. The very mild treatment of Abdul Qadeer Khan for his enormous crimes of selling clandestine nuclear equipment to Iran, North Korea, and Libya is but one example of the difficulty of finding consistent and effective responses to violations of arms control and nonproliferation norms. It is clear that arms control criteria will not always be the primary consideration in relations among states.

Strengthening International Organizations

Although it is difficult to generalize, because each case of a compliance problem needs to be considered in context, several recommendations regarding international organizations may be useful:

  • States-parties need to ensure the integrity and technical competence of international implementation, verification, and compliance organizations. Some of these organizations have been underfunded and are unable to provide the high-level training and equipment that is necessary for their success. They also must be, and must be seen to be, capable of excluding unwarranted intelligence infiltration and of protecting restricted and proprietary information.

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  • Individual states-parties should pay more attention and give greater weight to the efforts, conclusions, and recommendations of these organizations. This is surely one of the lessons from the Iraq experience.

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  • States-parties should accept their responsibility to contribute to the verification process and to make their own national decisions.

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  • International organizations should assist interested states-parties to have greater access to relevant compliance information and help states-parties in analyzing and understanding such information.

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  • Greater efforts should be made to use a systematic consultation and clarification procedure in the early stages of a compliance issue.

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  • When necessary, international organizations should move expeditiously to reach compliance decisions, to ameliorate instances of noncompliance, and to refer intractable cases to the appropriate higher authorities, which themselves must then deal with the issue.

The international implementation and compliance organizations are alive and well and playing a key role in keeping arms control agreements effective. The only exception would seem to be UNMOVIC, which has proven capabilities but lacks a current mission. The ability of these organizations to identify and correct compliance problems, however, needs to be improved.[13] This can be achieved through providing greater resources to them, asking for a greater sense of urgency in their work, and paying more attention to their findings and recommendations. The result will be fewer confrontations between individual states and greater security for all.

 

Examples of Ambiguities in Compliance Disputes

Edward Ifft

Deciding whether a country has complied with an agreement is not always clear-cut.

Many arms control disputes are really over how ambiguous information should be interpreted. Some of the frequent clashes over the Limited Test Ban Treaty, for example, revolved around the differing meanings of the word “debris” in the English text and its counterpart “osadki” in the Russian text. Unfortunately, these two words had slightly different meanings but were equally authentic. This led to disputes over whether the Soviet Union had violated the treaty.

Likewise, under the Threshold Test Ban Treaty, the seismic data from Soviet tests were clear enough, but translating these into nuclear yields was difficult and led to charges of violations that may not always have been warranted.

There were also differing interpretations of the famous 1979 “South Atlantic Flash.” Not everyone agreed that it was a nuclear explosion and who was responsible if it was. In 1982 the United Nations sent a team of experts to Southeast Asia to investigate “yellow rain” and whether the Biological Weapons Convention (BWC) had been violated. In spite of their efforts, the results were ambiguous.

In the 1990s, a chemical mix-up may have led to allegations of chemical weapons use among warring ethnic factions in the former Yugoslavia. Differences over the definition of “ambulance” and the distinction between ambulances and armored combat vehicles occurred in the Conventional Armed Forces in Europe Treaty.

On the other hand, during the Cold War, the Soviet Union sometimes used plausible explanations of ambiguous data to cover up violations. In the fatal 1979 Sverdlovsk incident, in which illegally produced anthrax spores escaped from a facility, officials claimed that the anthrax was caused by infected meat and that anthrax spores had been present in the region for many decades.

The Soviet Union used a similar strategy to discount the construction of a large tracking radar for an anti-ballistic missile (ABM) system near Krasnoyarsk, claiming that the radar was intended for space tracking.

These explanations were plausible enough that they were accepted by some in the West. But the Soviets eventually confessed that they had violated the BWC and the ABM Treaty, respectively.

Perhaps the most celebrated case of the perils of interpretation was the U.S. oscillation between the “traditional” and “broad” interpretations of the ABM Treaty. Additionally, there were problems interpreting whether some Soviet activities complied with the treaty. These concerns included whether the Soviet Union was preparing an ABM defense of their national territory, whether there had been concurrent testing of ABMs and surface-to-air missiles, whether surface-to-air missiles had been tested in an ABM mode, and whether ABM launchers were capable of rapid reload.[1] Under START, although the United States has determined that it is in full compliance, differing interpretations of treaty language have led to questions about certain U.S. activities, including procedural issues related to inspections, flight tests of submarine-launched ballistic missiles, telemetry, the positioning of heavy bombers, and the nature of certain ICBM launchers.[2]

Under the BWC, distinguishing between defensive and offensive programs is always a potential problem. Likewise, ambiguities created by dual-use items continue to pose difficult issues in compliance discussions under several agreements.


Edward Ifft is a retired Department of State official who served as deputy director of the On-Site Inspection Agency and senior advisor to the Defense Threat Reduction Agency. He is an adjunct professor in the security studies program of the School of Foreign Service at Georgetown University. The views expressed in this paper are those of the author and do not necessarily reflect the policy of the U.S. government.


ENDNOTES

1. See “Soviet Noncompliance with Arms Control Agreements,” U.S. Department of State Special Report, no. 163 (March 1987).

2. U.S. Department of State, “Adherence to and Compliance with Arms Control, Nonproliferation and Disarmament Agreements and Commitments,” August 2005, p. 10.

 

An Evolving U.S. Position

Edward Ifft

Traditionally, the United States has urged “effective verification” and strict enforcement of arms control agreements, although with some important exceptions. With the end of the Cold War and the rise of rogue states and terrorism, a change seems to be occurring, with the United States placing relatively less emphasis on verification per se and more on ensuring compliance and enforcement.

The reduced U.S. emphasis on verification is seen in the 2001 U.S. pullout from the extended efforts of the international community to negotiate a verification protocol to the 1972 Biological Weapons Convention. It can also be seen in the Bush administration’s decision not to have any verification regime in the 2002 Strategic Offensive Reductions Treaty beyond that provided by the 1991 START accord and the administration’s recent pullback from the long-standing goal of an effective verification regime in a proposed fissile material cutoff treaty (FMCT) at the Conference on Disarmament in Geneva.[1]

At the same time, the Bush administration has placed increased emphasis on compliance and enforcement in the cases of Iraq, Iran, and North Korea. These contrasting trends, although certainly understandable in individual cases, have caused some confusion among countries around the world, who see inconsistencies and a lack of continuity in the U.S. approach.

Post-Cold War Shifts

To understand the new U.S. position, one needs to examine the shift of U.S. arms control priorities after the end of the Cold War. Rather than negotiating new accords, it seemed appropriate for U.S. officials to focus on ensuring that the numerous and elaborate verification regimes that already existed worked properly. By that time, the two STARTs had brought the competition in strategic offensive arms under control and promised deep reductions in these arms. Additionally, aside from a Comprehensive Test Ban Treaty and an FMCT, both of which remained high priorities for the United States and most other countries, it appeared that the most urgent parts of the global arms control agenda had been addressed: All three forms of weapons of mass destruction were subject to strict legal regimes; the problem of conventional arms in Europe had been solved; Iraq’s illegal activities had been contained; and the nuclear Nonproliferation Treaty seemed effective and healthy, especially after the 1995 Review Conference.

With the advent of a much more congenial relationship with Russia, the United States then faced the choice between two possible arms control paths. One route would have been more intrusive verification measures and, hence, more ambitious arms control objectives, especially if the United States were willing to help pay Russia’s costs. The opposite alternative was that, with a friendlier and more transparent Russia, the need for verification in Russia would lessen. The Clinton administration attempted to head down the first path. The Clinton-Yeltsin 1997 Helsinki framework envisioned ambitious measures—controls on nondeployed nuclear warheads, cruise missiles, tactical nuclear weapons, etc.—and much work was done on the very intrusive verification arrangements that would have been required. The Bush administration seems to be following the second path.

Different dynamics have been in play in the multilateral arena. The U.S. attitude toward the role of international organizations in compliance and verification has been complex, welcoming their efforts when they seemed to support U.S. conclusions and belittling them when they did not. Under the UN scale of assessments, the United States typically is the largest financial supporter of organizations such as the International Atomic Energy Agency, the Organization for the Prohibition of Chemical Weapons, and the Comprehensive Test Ban Treaty Organization Preparatory Commission. It has been generous in sharing its technical expertise and providing personnel. It also has generally maintained that such organizations should not make compliance judgments.


Edward Ifft is a retired Department of State official who served as deputy director of the On-Site Inspection Agency and senior advisor to the Defense Threat Reduction Agency. He is an adjunct professor in the security studies program of the School of Foreign Service at Georgetown University. The views expressed in this paper are those of the author and do not necessarily reflect the policy of the U.S. government.


ENDNOTES

1. For further discussion, see Wade Boese, “The Bush Administration and Verification,” Arms Control Today, April 2005, pp. 27-29.


Edward Ifft is a retired Department of State official who served as deputy director of the On-Site Inspection Agency and senior advisor to the Defense Threat Reduction Agency. He is an adjunct professor in the security studies program of the School of Foreign Service at Georgetown University. The views expressed in this paper are those of the author and do not necessarily reflect the policy of the U.S. government.


ENDNOTES

1. Paula A. DeSutter, “Remarks to the Congressional Defense and Foreign Policy Forum,” January 28, 2005.

2. Hans Blix, Disarming Iraq ( New York: Pantheon Books, 2004), chap. 5.

3. “Zeroing In on Noncompliance: An Interview With Assistant Secretary of State Stephen G. Rademaker” Arms Control Today, May 2005, pp. 13-16; George Bunn and John B. Rhinelander, “NPT Withdrawal: Time for the Security Council to Step In,” Arms Control Today, May 2005, pp. 13-21.

4. Miles A. Pomper, “Bolton Hearings Highlight Internal Differences on Cuba’s Biological Weapons,” Arms Control Today, May 2005, pp. 26-27.

5. U.S. Department of State, “Adherence to and Compliance with Arms Control, Nonproliferation and Disarmament Agreements and Commitments.” The most recent report is for January 2002 to January 2004.

6. Office of the Press Secretary, The White House, March 7, 2005.

7. See UN Security Council Resolutions 687, 1284, and 1441.

8. For one of the earliest discussions of this issue, see Fred Ikle, “After Detection...What?” Foreign Affairs, January 1961.

9. Vienna Convention on the Law of Treaties, art. 60, par. 3.

10. START Declarations.

11. Lawrence Scheinman, “Disarmament: Have the Five Nuclear Powers Done Enough?” Arms Control Today, January/February 2005, pp. 6-11.

12. For a discussion of this form of arms control, see Lewis A. Dunn and Victor Alessi, “Arms Control by Other Means,” Survival, vol. 42, no. 4 (2000), pp. 223-238.

13. Trevor Findlay, “Looking Back: The UN Monitoring, Verification and Inspection Commission,” Arms Control Today, September 2005, pp. 45-48.

 

OPCW Director Seeks Middle East Inroads

Michael Nguyen

Efforts to win universal support for the Chemical Weapons Convention (CWC) have foundered because of resistance from key countries in the Middle East and elsewhere. But the head of the international organization charged with implementing the CWC told Arms Control Today that some limited progress has been made in getting Middle Eastern countries to discuss the subject.

Maintaining the viability of challenge and industry inspections also is essential in ensuring the long-term relevance and credibility of the Organization for the Prohibition of Chemical Weapons (OPCW), said Director-General Rogelio Pfirter in a Sept. 23 interview. A lawyer and longtime diplomat in the Ministry of Foreign Affairs of Argentina, Pfirter has headed the OPCW since July 2002. He was appointed during a special meeting of the CWC’s states-parties following the U.S.-led ouster of his predecessor, José Bustani, in 2002. (See ACT, September 2002.)

More than eight years after its entry into force, 175 states have ratified or acceded to the convention prohibiting the production and stockpiling of chemical weapons, while an additional 19 states have not ratified or acceded to the convention. The CWC’s rapid pace toward universality is particularly remarkable when compared with the nuclear Nonproliferation Treaty’s (NPT) history: the NPT had only 104 states-parties eight years after its entry into force, although it currently has 189 members. Pfirter noted, however, that substantial obstacles remain. “In terms of numbers, it’s not too large, but in terms of quality, it might be quite a daunting task for us still,” he said.

In the Middle East, neither Egypt, Lebanon, Syria, nor Israel have ratified the CWC, although Israel has signed it. The United States has accused both Egypt and Syria of maintaining stockpiles of chemical weapons. “Unfortunately, chemical weapons are hostage to nuclear weapons,” said Pfirter, referring to the refusal of Egypt and Syria to accede to the CWC until Israel accedes to the NPT.

But Pfirter remains optimistic, noting that the issue has advanced some after having been largely “inert” until two years ago. Since then, the OPCW has met both bilaterally and collectively with officials of each state, and these countries have assured Pfirter that they agreed with the underlying principle of the convention that chemical weapons should not exist or continue.

Still, Pfirter says that he sees greater willingness among the three states to revisit the CWC in a “dynamic fashion, not just take for granted that there will always be a stalemate.” Officials from all three countries attended a July OPCW workshop in Cyprus seeking universal adherence in the Mediterranean region. He said he looked forward to Egypt and Syria sending official observers to future formal meetings of OPCW states-parties.

But Pfirter also acknowledges that the odds are long. “The security question in the Middle East,” he says, “will play a key role ultimately in any decision that countries might take.” For example, he predicted that security concerns would trump any economic considerations raised if CWC states-parties choose to punish these non-state-parties by restricting their ability to trade in Schedule 3 chemicals, which are defined as chemicals used in large quantities by commercial industries that also pose a nonproliferation risk as chemical weapons or precursors. Such restrictions might have a significant impact on important industries in Egypt and Israel. In the convention, states agreed that they would decide whether to bar trade in Schedule 3 chemicals with non-states-parties five years after its entry into force but took no action on the matter at the appropriate review conference in 2003. More than two years later, Pfirter said he did not believe there was the necessary consensus among the states-parties to move forward on the issue.

The internal strife of several states also is an obstacle to universality. Nonetheless, the Democratic Republic of Congo acceded to the convention Oct. 12, and Iraq has pledged to accede in the near future. One troublesome holdout has been North Korea, where efforts to seek a diplomatic opening have generated no response, according to Pfirter.

Beyond universality, ensuring that CWC states-parties are free of chemical weapons is essential to ensuring the convention’s success. Pfirter argues that doing so requires loosening states’ inhibitions to take advantage of the treaty’s provision for challenge inspections. He describes such inspections as “one of the key components of the credibility and deterrent capacity” of the convention. No such inspections have been conducted to date. To ensure that the challenge inspections remain a viable instrument of the convention, Pfirter has worked to ensure that the OPCW’s Technical Secretariat maintains a high-level of readiness, including surprise drills and observation of and participation in mock challenge inspections and workshops dedicated to the process.

Pfirter also sees the nonproliferation aspects of the convention as essential to its long-term mission. The convention itself has a well-defined industry inspection regime, placing chemicals into three schedules based on their military and commercial value. Schedule 1 facilities, which use chemicals with high military but low commercial value, have received repeated inspections. But he believes that OPCW needs to be conducting more inspections of Other Chemical Productions Facilities (OCPFs) that produce unscheduled chemicals. Less than 300 of the 4,834 declared OCPFs have been inspected.

The ability to maintain these inspections depends on the OPCW’s limited budget. Pfirter has steered the organization out of the financial crisis that led to substantial reductions in its inspections activities in 2001-2002, but the OPCW is still dependent on payment by chemical weapons possessor states for inspections conducted during destruction activities. The unpredictable nature of the destruction schedules has caused budget shortfalls in the past.

Another nonproliferation concern is the failure of many states-parties to follow through on their Article VII obligations, which require states-parties to designate a national authority and implement the convention through administrative and penal legislation. The 2003 Eighth Conference of States Parties adopted an action plan two years ago to provide technical assistance, but it is clear that many states-parties still have not acted. “Implementation is of the essence,” said Pfirter, and the upcoming Tenth Conference of States Parties Nov. 7-11 will revisit the issue.

Chemical weapons destruction deadlines established in the convention also loom on the horizon. Pfirter appealed to the developed world to provide all the support necessary to help Russia meet the convention’s ultimate 2012 deadline for destroying its chemical stockpile. If Russia and the United States fail to destroy their stockpiles, “I think it will have a devastating effect,” Pfirter said.

Today, Russia, with the largest declared stockpile, has destroyed less than 3 percent, while the United States, with the second-largest stockpile, has destroyed less than 40 percent. Both states have asked for and received extensions to the three interim deadlines established by the convention. By December 2007, the United States is committed to destroying 45 percent of its stockpile, the third and final interim goal. At the upcoming conference, the United States has said that it will push to establish a firm target date for Russia to destroy 45 percent of its stockpile. Countries generally have supported extending Russia’s deadline, but no new date has been set.

Click here for a complete transcript of the interview.

 

IAEA Reports Increase in Nuclear Trafficking

Scott Morrissey

According to a Sept. 27 International Atomic Energy Agency (IAEA) report, incidents of nuclear and radioactive trafficking rose significantly in 2004. Trafficking of nuclear materials has increased for the first time since 2000, and trafficking of radioactive materials has more than doubled over the past two years.

The IAEA’s Illicit Trafficking Database (ITDB) works with 81 participating states that voluntarily provide information regarding unauthorized acquisitions and transfers of nuclear and radioactive materials. The ITDB has confirmed 662 incidents of nuclear and radioactive trafficking since 1993, with 2004 marking the highest rate of incidents with 93 reported.

Trafficking of nuclear materials—substances containing uranium, plutonium, or thorium—is up slightly but significantly from the previous three years. There were 11 such incidents in 2004, compared to 6 in 2003 and 9 in 2002. The ITDB reports a total of 196 nuclear material incidents since 1993, 178 of which involved low-grade materials such as low-enriched, natural, and depleted uranium, as well as roughly two-dozen incidents involving trace amounts of plutonium-239. None of these items are in themselves suitable for making nuclear weapons, but the incidents demonstrate the insecurity of these materials and their storage facilities.

None of the 2004 incidents involved weapons-grade material. Since 1993, there have been only 18 confirmed incidents of highly enriched uranium (HEU) or plutonium trafficking, all of which occurred in Europe or the former Soviet Union and mostly concerned amounts of less than 1 kilogram. The latest reported incident of this type occurred in 2003, when an individual was arrested trying to smuggle 170 grams of HEU across the border of the former Soviet republic of Georgia.

Trafficking of radioactive materials, mainly radioactive isotopes of cesium, americium, strontium, cobalt, and iridium, have increased, according to the report. The ITDB confirmed 77 incidents of radioactive material trafficking in 2004, an increase from 64 in 2003, which together comprise one-third of the 400 reports submitted since 1993. These radioactive materials have legitimate applications in industry and medicine, and most instances of their trafficking involved substances that are not thought to pose a serious radiological risk if used in malicious acts. However, about 50 of the reported incidents involved sources that are radioactive enough to be considered “dangerous” if used for destructive purposes, such as in a radioactive dispersal device, or “dirty bomb.” Of these high-risk incidents, the overwhelming majority were reported in the last six years.

Although the ITDB report states that this increase in trafficking is partially explained by better reporting from its states-parties, it also says it is indicative of a black market demand for these materials.

 

IAEA Board Closes Safeguards Loophole

Paul Kerr

The International Atomic Energy Agency (IAEA) Board of Governors Sept. 20 approved changes to strengthen the agency’s Small Quantities Protocol, an agreement the IAEA viewed as a weak point in its overall ability to detect clandestine nuclear activity.

State-parties to the nuclear Nonproliferation Treaty (NPT) are required to conclude an IAEA safeguards agreement, which allows the agency to monitor certain declared nuclear activities and facilities to ensure that they are used solely for peaceful purposes. However, some NPT state-parties with small quantities of fissionable materials, such as highly enriched uranium (HEU) or plutonium, have also been able to conclude a small quantities protocol to their safeguards agreements. Certain IAEA verification requirements are suspended for such states.

After reviewing a report from IAEA Director-General Mohamed ElBaradei during its June meeting, the board agreed that the protocol constituted “a weakness of the safeguards system.” The board considered two solutions described in the report and opted to adopt modifications to the protocol’s standard text. (See ACT, July/August 2005.)

NPT members may still conclude small quantities protocols, but the revised text establishes more rigorous criteria for states wishing to conclude such agreements. Additionally, the text places further obligations on all present and future states with such protocols.

Previously, a non-nuclear-weapon NPT state could conclude a small quantities protocol as long as the state did not possess more than 1 kilogram of “special fissionable material,” which consists of 1 kilogram of plutonium or progressively larger amounts of enriched, natural, or depleted uranium. Additionally, the state could not have any such material in a nuclear “facility,” such as a reactor, a nuclear fuel production plant, or any other “location where nuclear material in amounts greater than 1 effective kilogram is customarily used.” These states were also not obligated to disclose their nuclear material inventory to the IAEA.

The modified text, however, requires states to provide the agency with “initial reports” of all relevant nuclear material and to allow the agency to verify those reports via inspections. It also effectively allows the IAEA to monitor nuclear facilities in all NPT states regardless of whether the facilities contain nuclear material. States with either planned or existing nuclear facilities that have not yet concluded a protocol will henceforth not be permitted to do so. Similarly, states with a small quantities protocol that have planned or existing facilities will be called on to rescind their agreements. However, “only a few countries” are in this situation, an IAEA official told Arms Control Today Oct. 25. Seventy-six states currently have small quantities protocols in force.

The IAEA previously could not require states with a protocol either to provide early design information about planned nuclear facilities or allow the agency to determine the status of such facilities. In fact, such states were only required to give the agency six months’ notice before introducing nuclear material into a facility.

According to the IAEA official, the final standard text suspends two more requirements for countries with small quantities protocols than ElBaradei’s report had initially suggested. This was done to avoid creating the impression that the IAEA was adding unintended obligations to states with small quantities protocols, the official said, adding that keeping the requirements “would not have added anything substantial.”

ElBaradei’s report argued that eliminating the Small Quantities Protocol altogether was a superior alternative. According to that proposal, no more states would be able to conclude such protocols, and the states with existing protocols would be called on to rescind them. These states would then have been required to provide regular accounting reports of their nuclear activities to the IAEA and allow the agency to conduct routine inspections.

Although the revised text does not include these requirements, it nevertheless eliminates the current protocol’s “key limitations,” an IAEA official told Arms Control Today in June.

According to the IAEA, the agency will be contacting states that have concluded the protocol to discuss the necessary changes. The IAEA General Conference adopted a resolution Sept. 30 encouraging states with such protocols to comply with the new modifications “as soon as possible.”

 

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