25 years GCSP: International Disarmament Law Episode 3/3

​​​​​​Taking Stock, Moving forward: Disarmament under International Law

Ashley Müller: In this mini-series, we have the pleasure of conversing with Dr Stuart Casey-Maslen on the topic of International Disarmament Law. He is joined by Ms Dominika de Beauffort, Senior Policy Officer with the Security and Law Programme at the GCSP, where she is also the Course Director of the International Disarmament Law executive course and virtual learning journey.

Dominika de Beauffort: Stuart, in the last episode, we quite extensively discussed the core features of global disarmament treaties. And so we discussed stockpile destruction, the development of weapons, the use of weapons, and you also mentioned victim assistance. Today the goal will be to discuss another very important issue, which is the implementation of global disarmament treaties, because if we think about it, the very ultimate goal of multilateral or bilateral treaties is that states comply with those treaties. So looking at the global disarmament treaties, what type of mechanisms to support implementation can we find?

Stuart Casey-Maslen: So there's a range of implementing mechanisms depending on the treaty, there's no one set formula, it differs from treaty to treaty. But the first thing to say, of course, is that a state doesn't tend to join the disarmament treaty, unless they're actually committed to it, because they realised that there will be consequences, whether that be political, or more formal consequences if they fail to implement it correctly. In terms of implementation mechanisms, probably the most far reaching is the Organization for the Prohibition of Chemical Weapons established under the Chemical Weapons Convention. This has very far reaching powers to investigate alleged violations of the treaty, and is the most sophisticated of all the global disarmament treaties. A more common feature is the opportunity to submit reports on implementation, but also to discuss those reports and more broadly, issues of interpretation and application in annual conferences of States Parties, or five year review conferences. In some of the more recent treaties, we have what are called Implementation Support units, those are not like the OPCW, they don't have far reaching powers. Their aim is to assist states in implementing such provisions.

Dominika de Beauffort: And when we started discussing and talking about international disarmament law, we briefly spoke about history. So now I'm thinking about 1899, and the first international peace conference in The Hague, where states adopted joint declarations that included prohibitions on for instance, dum dum bullets, but back then it also meant it was not possible really, for states to adopt proposals on general disarmament measures. And this was due to the general resistance against inspections and monitoring compliance. Do you have the feeling that much has changed since then, actually, when looking at today's treaties, and the way they're being monitored?

Stuart Casey-Maslen: No, this is clearly a long standing concern, because what you're doing is you're allowing another state or an international organisation into your territory, to poke around and ask lots of impertinent and pertinent questions about what you're doing, what you're doing with respect to research, what you're doing with respect to stockpiles, for example. So you're absolutely right. It was a key issue in the 1899 Peace Conference, about how you monitor and ensure compliance. And it continues to be a key issue today, just to give one example, despite pressure from a number of states, there is still no monitoring mechanism under the Biological Weapons Convention. And that is because of fear in particular by the United States that other states will come in and start to look at its pharmaceutical industry and steal some of its secrets. So it remains a challenging issue. But good monitoring builds confidence among all States Parties, and makes sure that the treaty is implemented properly. So it's a key element in particular with respect to weapons of mass destruction.

Dominika de Beauffort: That's a good point. Now, let's think for a moment that a state does not comply with the treaty. Are there any procedures for violations of the treaty in global disarmament treaties?

Stuart Casey-Maslen: There are a number of procedures that exist, but it is clear that a state is not taken before a court and sentenced to jail in the way that an individual is if he or she violates the criminal law. So we are looking at a slightly different register of mechanisms. But firstly, the existence of fact finding missions, for example, compulsory in certain circumstances on site finding, that's a far reaching, monitoring obligation, and is already a recognition that there are serious concerns about a state's compliance. The ability to conduct surveillance, whether that be on a national or on a treaty basis, which is provided for in several arms control agreements is also important. You're trying to establish what the truth is, and the more mechanisms that you have to do that, the better the compliance.

Dominika de Beauffort: Can you think of a good example, a good pupil in this field? So a country that opened up its doors and says, well, please check, we are doing fine.

Stuart Casey-Maslen: Well, there are many states under the Chemical Weapons Convention that have fully complied with the obligations. They allow the OPCW to come in on a fairly regular basis, in particular, those states that did have a chemical weapons capacity. So for example, I mentioned Porton Down, they regularly receive inspections from the OPCW to make sure that what they're doing is for purely peaceful purposes, and is not being diverted to hostile ends. I think it is more difficult sometimes in the nuclear field. So the IAEA, the International Atomic Energy Agency has the power to verify compliance with safeguards agreements with states. And there the situation is more complicated. With respect to North Korea, they asked the IAEA to leave; Iran's compliance with its safeguards agreements has been patchy, although recently, it has significantly improved, though it's more difficult with respect to the nuclear field. But nonetheless, there are still plenty of good examples.

Dominika de Beauffort: So that's really good to hear that in spite of recent setbacks, we do find the success stories Now, moving from compliance to enforcement. What type of enforcement mechanisms do we find in international disarmament treaties?

Stuart Casey-Maslen: So there are provisions for findings of violations. But to be clear, these are not particularly far reaching the to real mechanisms for enforcement, which we're going to talk about, I think in a while, are the International Court of Justice, and especially the UN Security Council, and there is the possibility to refer disputes before the ICJ or to reports to the Council. And those are really the ultimate opportunities to have enforcement provisions on a state that is not complying with its obligations.

Dominika de Beauffort: Now coming back to the UN Security Council, that you've just mentioned, and the International Court of Justice, and can you maybe give an example on how one or the other body has been involved in the field of disarmament?

Stuart Casey-Maslen: So both bodies have been involved. The UN Security Council, of course, has taken a very far reaching action with respect to North Korea, North Korea was a party to the NPT and then decided to withdraw. So the Council continues to put upon North Korea, there have also been the issues as to whether Iran has been developing a nuclear weapon, and equally, there have been far reaching sanctions imposed. This is exceptional, I think it's fair to say a state really has to be engaging in some pretty fundamental unlawful activity before the Security Council will get involved. But it is there as the primary mechanism for the maintenance of international peace and security. Other cases can come before the International Court of Justice. And there are both what we call contentious cases, that means cases by one state against another. But there are also advisory opinions. Just to give an example, in 1996, the ICJ issued a very important advisory opinion on the legality of the threat or use of nuclear weapons. And it decided that all states had an obligation to negotiate and conclude a treaty on nuclear disarmament. That's a very far reaching finding. 

Dominika de Beauffort: This could actually be a very good counter argument to those who think, oh, the Security Council actually is not working. It fails to unite and it is basically always in a stalemate. So when it should act, it never does act. What do you think?

Stuart Casey-Maslen: The UN Security Council does take action, it has the incredible power to authorize the use of force against a UN member state that is extremely far reaching. Now, of course, it doesn't do that very often. But it does do that we saw that with respect to Iraq's invasion on Kuwait  in 1990, we've seen it, as I mentioned, with respect to the development of nuclear weapons by North Korea and Iran, of course, the record is patchy, it is far from perfect, in particular, when allegations are made against one of the permanent, one of the five permanent members of the Council, because they have that veto power. And that is a structural impediment to non discriminatory application of the rules. But the alternative that there'd be no mechanism and no rules, I think would lead to anarchy. I think we're better as we are, of course, we could be far better still.

Dominika de Beauffort: Yes, I agree. This is definitely better than nothing. Now, having discussed compliance and enforcement mechanisms, I would like to talk a bit about the way forward and the tasks that should be given priority in future work to promote the international legal regulation of disarmament, arms control, and non-proliferation. So Stuart, what would be for you the top three priorities that they should take on their agenda?

Stuart Casey-Maslen: Well, I'll suggest to, at least that I think, are quite pressing. And they're kind of opposite ends of the spectrum of weapons, if you like, at the top end of the spectrum, it is high time that the nuclear armed states sat down and began to negotiate a comprehensive nuclear disarmament. The Treaty on the Prohibition of Nuclear Weapons is a wake up call to nuclear armed states that they need to take their obligations under the non proliferation treaty, seriously, and certainly far more seriously than they have in recent years, what we're seeing is a new nuclear arms race. And at a time of global pandemic, that money could be far better used. On the other end of the spectrum, I think there's unfinished business within the Convention on certain conventional weapons. And specifically, with respect to Anti-Tank Anti-Vehicle Mines. We have, as you know, the Prohibition on Anti Personnel Mines. But actually, today, there are many civilians being killed by Anti-Vehicle Mines. There was some better regulation in 1996 in the amended protocol to, but it falls far short of what we need, we need either a prohibition or very far reaching restrictions on the use of Anti-Vehicle Mines.

Dominika de Beauffort: Stuart, you briefly mentioned the Nuclear Non Proliferation Treaty. So the review conference was actually supposed to happen in 2020. But well, due to COVID-19. It was postponed and well should take place before April of next year. And who knows, maybe it's a virtual conference. So my question for you would be the following. What are the key issues that will be discussed at the conference?

Stuart Casey-Maslen: What I think that the key issues are that nuclear armed states finally take seriously that Article Six is that requires nuclear disarmament is not just an add on that it is part and parcel of the NPT that states take seriously, measures to begin Comprehensive Nuclear Disarmament, in whatever forum, they decide. Whether that be within the United Nations, whether that be in a bilateral multilateral forum, but that they take those obligations seriously, because otherwise, the new nuclear arms race, which is one focusing on technology, as opposed to necessarily just numbers is going to spiral out of control.

Dominika de Beauffort: Now, the last issue that I would like to touch upon is a soft law, and the role soft law could or should play in further developing international disarmament law. I know that there are some states that did say, well, legally non binding instruments like political declarations can actually be a first step towards a new treaty, or at least create common grounds for further discussion. So it is actually preferable to go for it for soft law instruments. But then there are others who argue, well, states actually merely pay lip service this way. What is your stance on that?

Stuart Casey-Maslen: So certainly, soft law. Politically, binding declarations have an important role in international law. Generally, if we look at issues around use of force, there are the 1990 Basic Principles on the Use of Force and Firearms, very important for addressing issues of law enforcement. There's the Safe Schools declaration, which promotes the protection of schools during situations of armed conflict. Those are important in disarmament law, it's a little harder to make the argument in favour in my view, just to give an example, the Plan of Action on Small Arms and Light Weapons is a soft law agreement, a politically binding agreement, and I think it's safe to say it is not had the same effects, as has the Anti Personnel Mine Ban Convention, or the Convention on Cluster Munitions. And it hasn't had the same effects because firstly, it doesn't create binding obligations. And secondly, and as a consequence of that states have not provided the necessary resources. $10 billion of funding has gone into the Anti Personnel Mine Ban Convention, most of it on clearance, very small sums, comparatively have been allocated to Small Arms and Light Weapons, which is a far far greater problem facing many communities around the world. And I think the primary reason is because there isn't a disarmament treaty.

Dominika de Beauffort: Thank you very much for highlighting this because it is true that soft law instruments actually may work better in some areas than others. So, a good point, Stuart, I think we've come to an end. And I would like to thank you very much for your time and for all your insights that you have shared with us. And before I say goodbye, I still was a bit curious to see what your current writing projects were, so what will be your future projects?

Stuart Casey-Maslen: Well, I'm working with Tobias Vester, Head of Security and Law at the GCSP, on finalising a book on the protection of civilians, which will come out next year. So that's a very exciting project. And I'm also writing a book about law policy and practice on nuclear weapons, which will also come out towards the end of next year. So those are two exciting writing projects that I have on at the moment.

Dominika de Beauffort: Thank you. Thank you very much again. And also thank you to all of you who are listening to us and have stayed with us throughout these three episodes. And before I say goodbye to you, I would like to conclude by actually recommending three things to you. So if you wish to dive deeper into the topic of international disarmament law, the very first thing of course, would be the “Guide to International Disarmament Law” by Stuart Casey-Maslen, and Tobias Vestner. We have mentioned this book during the podcast. And then the second thing would be a very practical and actually modern working tool, which is the DisarmApp that GCSP launched earlier this year. So if you don't know it yet, I would really invite you to go to DisarmApp, a web page, download the app, or you can also use it on your desktops because it is a web app. So there you will find all definitions of core elements of global disarmament treaties, there is a huge database, so please click yourselves through the page and enjoy. The last item that I would like to recommend is our Virtual Learning Journey on International Disarmament Law that we have launched actually last year. So this year is the second edition. And as I've said, it's a virtual course. We will have Stuart on board for this training course and also many other experts in the field. So please go to the GCSP website to find out more, the dates, the course programme and any other information you may want to know and I also will be very happy to answer your questions via email. Goodbye and stay healthy.

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