Noncompliance and punishment: lessons from multilateral chemical, biological, and nuclear arms control

Abstract

Incidents of noncompliance with existing multilateral arms-control treaties and subsequent enforcement actions can help to inform the design of future treaties. This article uses examples of noncompliance with the 1972 Biological and Toxin Weapons Convention, 1993 Chemical Weapons Convention, and 1968 Treaty on the Non-Proliferation of Nuclear Weapons to identify factors that have determined the nature of compliance-enforcement actions. The punitivist model of treaty design and enforcement is introduced and is used alongside the established transformationalist and managerialist models to analyze incidents of noncompliance and identify factors shaping compliance-enforcement actions. Two such factors are found to play important roles: the scale of acts of noncompliance and the identity of the perpetrator. The scale of the act of noncompliance dictates whether the compliance-enforcement actions specified in the treaty text are followed. Responses to large-scale acts do follow the treaty-specified actions, while the small-scale acts analyzed in this article all elicit a managerialist response of consultation and cooperation, regardless of actions stipulated in the treaty text. In all cases, the identity of the perpetrator is crucial: the permanent members of the UN Security Council and their allies are fundamentally impervious to punitive measures.

KEYWORDS:

• Arms control
• treaty
• compliance
• enforcement
• weapons of mass destruction (WMD)
• managerialist
• transformationalist
• biological weapons
• chemical weapons
• nuclear weapons

Acknowledgment

The author would like to acknowledge Dr. Heather Williams for her encouragement and her reviewing of early drafts.

Disclaimer

The views expressed in this document are those of the author and do not necessarily represent those of the Atomic Weapons Establishment, the Ministry of Defence, or the Government of the United Kingdom.

Notes

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2 Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed. (New York: Council on Foreign Relations, 1979), p. 47.

3 See, for instance, Hans J. Morgenthau, Politics Among Nations (New York: McGraw-Hill, 1948); and John J. Mearsheimer, “The False Promise of International Institutions,” International Security, Vol. 19, No. 3 (Winter 1994–1995), pp. 5–49, <https://doi.org/10.2307/2539078>.

4 Harald Müller, “Compliance Politics: A Critical Analysis of Multilateral Arms Control Treaty Enforcement,” Nonproliferation Review, Vol. 7, No. 2 (2000), p. 79, <https://www.nonproliferation.org/wp-content/uploads/npr/72muell.pdf>.

5 Andrew T. Guzman, “A Compliance-Based Theory of International Law,” California Law Review, Vol. 90, No. 6 (2002), p. 1833.

6 Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Cambridge, MA: Harvard University Press, 1998), p. 28.

7 Chayes and Chayes, The New Sovereignty, p. 28.

8 Chayes and Chayes, p. 25.

9 Chayes and Chayes, “On Compliance,” p. 200.

10 George W. Downs, Kyle W. Danish, and Peter N. Barsoom, "The Transformational Model of International Regime Design: Triumph of Hope or Experience?,” Columbia Journal of Transnational Law, Vol. 38, No. 3 (2000), p. 487.

11 George W. Downs, “Enforcement and the Evolution of Cooperation,” Michigan Journal of International Law, Vol. 19, No. 2 (1998), p. 319, <https://repository.law.umich.edu/mjil/vol19/iss2/2>.

12 Downs, Danish, and Barsoom, "The Transformational Model,” p. 467.

13 Downs, Danish, and Barsoom, p. 470.

14 Harold K. Jacobson and Edith Brown Weiss, “Strengthening Compliance with International Environmental Accords: Preliminary Observations from a Collaborative Project,” Global Governance: A Review of Multilateralism and International Organizations, Vol. 1, No. 2 (May–August 1995), p. 142.

15 Downs, Danish, and Barsoom, “The Transformational Model,” p. 475.

16 Downs, “Enforcement and Evolution,” p. 319.

17 Downs, Danish, and Barsoom, “The Transformational Model,” p. 485.

18 Joseph M. Grieco, “Anarchy and the limits of cooperation: a realist critique of the newest liberal institutionalism,” International Organization, Vol. 42, No. 3 (Summer 1988), p. 488, <https://doi.org/10.1017/S0020818300027715>.

19 Joseph S. Nye Jr., “Neorealism and Neoliberalism,” World Politics, Vol. 40, No. 2 (January 1988), p. 238, <https://doi.org/10.2307/2010363>.

20 Grieco, “Anarchy and the Limits of Cooperation,” p. 500.

21 Guzman, “A Compliance-Based Theory,” p. 1873.

22 Christopher A. Ford, “Compliance Assessment and Compliance Enforcement: The Challenge of Nuclear Noncompliance,” ILSA Journal of International & Comparative Law, Vol. 12, No. 2, Article 18 (2006), p. 587, <https://nsuworks.nova.edu/ilsajournal/vol12/iss2/18>.

23 Milton Leitenberg and Raymond A. Zilinskas, with Jens H. Kuhn, The Soviet Biological Weapons Program: A History (Cambridge, MA: Harvard University Press, 2012), p. 536.

24 Jonathan B. Tucker, “A Farewell to Germs: The U.S. Renunciation of Biological and Toxin Warfare, 1969–70,” International Security, Vol. 27, No. 1 (Summer 2002), p. 141, <https://doi.org/10.1162/016228802320231244>.

25 Richard M. Nixon, “Statement on Chemical and Biological Defense Policies and Programs,” US Department of State, November 25, 1969, <https://2001-2009.state.gov/documents/organization/90920.pdf>.

26 Biological and Toxin Weapons Convention, April 10, 1972.

27 Raymond A. Zilinskas, “Cuban Allegations of U.S. Biological Warfare: False Allegations and Their Impact on Attribution,” in Anne Clunan, Peter R. Lavoy, and Susan B. Martin, eds., Terrorism, War, or Disease? Unraveling the Use of Biological Weapons (Stanford, CA: Stanford University Press, 2008), p. 150, <https://doi.org/10.1515/9780804779814-010>.

28 Jonathan B. Tucker, “Multilateral Approaches to the Investigation and Attribution of Biological Weapons Use,” in Clunan, Lavoy, and Martin, Terrorism, War, or Disease?, p. 273, <https://doi.org/10.1515/9780804779814-015>.

29 Jonathan B. Tucker, “The BWC new process: A preliminary assessment,” Nonproliferation Review, Vol. 11, No. 1 (2004), p. 29, <https://www.nonproliferation.org/wp-content/uploads/npr/111tucker.pdf>.

30 UN General Assembly, “Chemical and Bacteriological (Biological) Weapons,” Resolution A/Res/42/37C, November 30, 1987, <https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/512/69/IMG/NR051269.pdf?OpenElement>.

31 Tucker, “Multilateral Approaches,” pp. 285–286.

32 Raymond A. Zilinskas, “Cuban Allegations of Biological Warfare by the United States: Assessing the Evidence,” Critical Reviews in Microbiology, Vol. 25, No. 3 (1999), p. 174, <https://doi.org/10.1080/10408419991299202>.

33 Zilinskas, “Assessing the Evidence,” pp. 175–176.

34 Zilinskas, “False Allegations,” p. 148.

35 Zilinskas, p. 149.

36 Ambassador Ian Soutar of the United Kingdom, “Report to all State Parties to the Biological and Toxin Weapons Convention on the results of the formal consultative meeting of State Parties to the Biological and Toxin Weapons Convention held from August 25–27, 1997,” UK Permanent Representation, Geneva, 1997, quoted in Zilinskas, “Assessing the Evidence,” p. 215.

37 Zilinskas, “False Allegations,” p. 152.

38 Michael Moodie, “The Soviet Union, Russia, and the biological and toxin weapons convention,” Nonproliferation Review, Vol. 8, No. 1 (2001), p. 60, <https://www.nonproliferation.org/wp-content/uploads/npr/81moodie.pdf>.

39 Moodie, “The Soviet Union,” p. 60.

40 Moodie, p. 61.

41 Leitenberg and Zilinskas, The Soviet Biological Weapons Program, p. 426.

42 Matthew Meselson et al., “The Sverdlovsk anthrax outbreak of 1979,” Science, Vol. 266, No. 5188 (November 1994), p. 1202.

43 Jonathan B. Tucker, “Strengthening Consultative Mechanisms Under Article V to Address BWC Compliance Concerns,” Harvard Sussex Program Occasional Paper No. 1, May 2011, p. 5, <http://www.sussex.ac.uk/Units/spru/hsp/occasional%20papers/HSPOP_1.pdf>.

44 R. Jeffrey Smith, “Yeltsin Blames ’79 Anthrax on Germ Warfare Efforts,” Washington Post, June 16, 1992, <https://www.washingtonpost.com/archive/politics/1992/06/16/yeltsin-blames-79-anthrax-on-germ-warfare-efforts/fea56f2d-bf9e-4787-b6ec-86bf190f3ddb/>.

45 Leitenberg and Zilinskas, Soviet Biological Weapons Program, p. 425.

46 Anne L. Clunan, “Identifying Biological Agents, Characterizing Events, and Attributing Blame,” in Anne L. Clunan, Peter R. Lavoy, and Susan B. Martin, eds., Terrorism, War, or Disease? Unravelling the Use of Biological Weapons (Stanford, CA: Stanford University Press, 2008), pp. 1–20.

47 David C. Kelly, “The Trilateral Agreement: lessons for biological weapons verification,” in Vertic Verification Yearbook (2002), p. 102, <https://www.vertic.org/media/Archived_Publications/Yearbooks/2002/VY02_Kelly.pdf>.

48 UNODA, “Biological Weapons Convention.”

49 Clunan, Lavoy, and Martin, Terrorism, War, or Disease?, p. 1.

50 Walter Krutzsch, Eric Myjer, and Ralf Trapp, “Part One: Introduction and General Issues, The Chemical Weapons Convention –Objectives, Principles, and Implementation Practice,” in Walter Krutsch, Eric Myjer, and Ralf Trapp, eds., The Chemical Weapons Convention: A Commentary (Oxford: Oxford University Press, 2014), p. 3.

51 Preparatory Commission for the Organisation for the Prohibition of Chemical Weapons, “Report of the Preparatory Commission,” PREPCOM/I/4, February 12, 1993, <https://www.opcw.org/sites/default/files/documents/PC_series/PC-I/en/pci04.pdf>.

52 James D. Fry, “Sovereign Equality Under the Chemical Weapons Convention: Doughnuts over Holes,” Journal of Conflict & Security Law, Vol. 15, No. 1 (Spring 2010), p. 59, <https://www.jstor.org/stable/26294679>.

53 Chemical Weapons Convention (CWC), January 13, 1993, Article IX, para. 2.

54 “Chemical Weapons Convention,” Organisation for the Prohibition of Chemical Weapons (OPCW), <https://www.opcw.org/chemical-weapons-convention>.

55 CWC, Article XII.

56 CWC, Article IV, para. 6.

57 CWC, Verification Annex, Part IV(A), para. 26.

58 States that accede to the treaty after the 10-year (2007) deadline are subject to a special regime for chemical-weapons destruction. The United States, Russia, and Libya all acceded before this date and were thus subject to the initial deadlines.

59 “Category 1” chemical weapons are defined in Part IV(A), para. 16, of the CWC Verification Annex as “Schedule 1 chemicals and their parts and components,” where Schedule 1 chemicals are those that have been, or could be, used as chemical weapons, or that have little or no purpose other than those prohibited under the CWC. Category 2 items are defined as all other relevant chemicals, while Category 3 items are defined as unfilled munitions and devices.

60 Daniel Horner, “Libya Sets Date to Destroy Chemical Arms,” Arms Control Today, June 2012, <https://www.armscontrol.org/act/2012_06/Libya_Sets_Date_to_Destroy_Chemical_Arms>.

61 Ralf Trapp and Paul Walker, “Article IV: Chemical Weapons,” in Krutsch, Myjer, and Trapp, The Chemical Weapons Convention, p. 129.

62 Masahiko Asada, “The OPCW’s arrangements for missed destruction deadlines under the Chemical Weapons Convention: an informal noncompliance procedure,” American Journal of International Law, Vol. 108, No. 3 (2014), p. 455, <link.gale.com/apps/doc/A389644158/AONE?u=googlescholar&sid=bookmark-AONE&xid=faebfbb5>.

63 Asada, “[A]rrangements for missed destruction deadlines,” p. 455.

64 OPCW, “OPCW Director-General Commends Major Milestone as Russia Completes Destruction of Chemical Weapons Stockpile under OPCW Verification,” September 27, 2017, <https://www.opcw.org/media-centre/news/2017/09/opcw-director-general-commends-major-milestone-russia-completes>.

65 David A. Koplow, “Train Wreck: The U.S. Violation of the Chemical Weapons Convention,” Journal of National Security Law & Policy, Vol. 6, No. 2 (2013), p. 360, <https://jnslp.com/2013/04/11/train-wreck-the-u-s-violation-of-the-chemical-weapons-convention/>.

66 “The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.”

67 Koplow, “Train Wreck,” p. 362.

68 Asada, “[A]rrangements for missed destruction deadlines,” p. 461.

69 OPCW Conference of the States Parties, “Decision: Final Extended Deadline of 29 April 2012,” C-16/DEC.11, December 1, 2011, <https://www.opcw.org/sites/default/files/documents/CSP/C-16/en/c16dec11_e_.pdf>.

70 Koplow, “Train Wreck,” p. 358.

71 United Nations, “Despite Progress Dismantling Syria’s Chemical Weapons Facilities, Accountability Gaps Persist, Senior Disarmament Official Tells Security Council,” SC/13489, September 6, 2018, <https://www.un.org/press/en/2018/sc13489.doc.htm>.

72 UN Security Council, “Letter dated 27 October 2014 from the Secretary-General addressed to the President of the Security Council,” S/2014/767, October 27, 2014, <https://undocs.org/s/2014/767>.

73 Alexander Kelle, “Power in the chemical weapons prohibition regime and the Organisation for the Prohibition of Chemical Weapons,” International Politics, Vol. 55, Nos. 3–4 (2018), pp. 414–415, <https://doi.org/10.1057/s41311-017-0083-3>.

74 Attacks in the towns of Talmenes, Qmenas, Sarmin, and Khan Shaykhun were all later identified as having been perpetrated by the Syrian government. See UN Security Council, “Letter dated 26 October 2017 from the Secretary-General addressed to the President of the Security Council,” S/2017/904, October 26, 2017, <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N17/349/30/PDF/N1734930.pdf?OpenElement>.

75 Such as the Declaration Assessment Team (DAT, established in 2014) and the Fact Finding Mission (FFM, also 2014). See OPCW, “Syria and the OPCW,” n.d., <https://www.opcw.org/media-centre/featured-topics/syria-and-opcw>.

76 Kelle, “Power in the chemical weapons prohibition regime,” p. 416.

77 UN Security Council, “Albania, … United States of America: draft resolution,” S/2017/172, February 28, 2017, <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2017_172.pdf>.

78 UN News, “Russia blocks Security Council action on reported use of chemical weapons in Syria’s Khan Shaykhun,” April 12, 2017, <https://news.un.org/en/story/2017/04/555292-russia-blocks-security-council-action-reported-use-chemical-weapons-syrias-khan>.

79 Alicia Sanders-Zakre, “Russian Vetoes End Syria CW Probe,” Arms Control Today, December 2017), p. 40, <https://www.armscontrol.org/act/2017-12/news-briefs/russian-vetoes-end-syria-cw-probe>.

80 OPCW Conference of State Parties, “Decision: Addressing the Threat From Chemical Weapons Use,” C-SS-4/DEC.3, June 27, 2018, <https://www.opcw.org/sites/default/files/documents/CSP/C-SS-4/en/css4dec3_e_.doc.pdf>.

81 OPCW, “Final Extended Deadline.”

82 Asada, “[A]rrangements for missed destruction deadlines,” p. 467.

83 Dimitris Bourantonis, “The Negotiation of the Non-Proliferation Treaty, 1965–1968: A Note,” International History Review, Vol. 19, No. 2 (1997), p. 351, <https://doi.org/10.1080/07075332.1997.9640788>.

84 Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, Article III.

85 The text of Article III doesn’t use the term “comprehensive safeguards agreement”; it requires only that the non-nuclear-weapon states “accept safeguards … negotiated and concluded with the International Atomic Energy Agency.” In practice, this takes the form of the comprehensive safeguards agreement and is negotiated between each NNWS and the IAEA, based on the model agreement outlined in IAEA, “The Structure and Content of Agreements Between the Agency and States Required in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/153 (Corrected), June 1972, <https://www.iaea.org/sites/default/files/publications/documents/infcircs/1972/infcirc153.pdf>.

86 “Completeness,” in this context, refers to the absence of any undeclared nuclear material. The CSA can be thought of as focusing on the “correctness” of the declaration—that what has been declared is correct.

87 In addition to more intrusive verification measures, such as access to undeclared facilities, the Additional Protocol requires more detailed declarations covering a wider variety of nuclear-related activities including research and development activities. IAEA, “Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards,” INFCIRC/540 (Corrected), December 1998, <https://www.iaea.org/sites/default/files/infcirc540c.pdf>.

88 IAEA, “The Statute of the IAEA,” <https://www.iaea.org/about/statute>.

89 Trevor Findlay, Proliferation Alert! The IAEA and Non-Compliance Reporting (Cambridge, MA: Belfer Center for Science and International Affairs, 2015), p. 21, <https://www.belfercenter.org/publication/proliferation-alert-iaea-and-non-compliance-reporting>.

90 Findlay, Proliferation Alert!

91 IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement in the Republic of Korea: Report by the Director General,” GOV/2004/84, November 11, 2004, p. 1, <https://www.iaea.org/sites/default/files/gov2004-84.pdf>.

92 IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement.”

93 Findlay, Proliferation Alert!, p. 72.

94 IAEA, “Annual Report for 2004,” GC(49)/5, 2005 p. 65, <https://www.iaea.org/sites/default/files/anrep2004_full.pdf >.

95 Jungmin Kang, Peter Hayes, Li Bin, Tatsujiro Suzuki, and Richard Tanter, “South Korea’s Nuclear Surprise,” Bulletin of the Atomic Scientists, Vol. 61, No. 1 (January 2005), p. 47, <https://doi.org/10.2968/061001011>.

96 IAEA Board of Governors, “Implementation of the NPT Safeguards,” p. 2.

97 IAEA Board of Governors, p. 2.

98 Daniel Horner and Mark Hibbs, “South Korea calls fuel-cycle testing a 'technical' violation,” Nucleonics Week, October 14, 2004, p. 15.

99 Mohamed ElBaradei, The Age of Deception: Nuclear Diplomacy in Treacherous Times (New York: Henry Holt and Company, 2012), p. 217.

100 Horner and Hibbs, “South Korea calls fuel-cycle testing a ‘technical’ violation,” p. 15.

101 IAEA Board of Governors, “Implementation of the NPT Safeguards Agreement.”

102 ElBaradei, The Age of Deception, p. 217.

103 Etel Solingen, Nuclear Logics: Contrasting Paths in East Asia and the Middle East (Princeton, NJ: Princeton University Press, 2007), p. 151.

104 Rolf Ekéus, “The Lessons of UNSCOM and Iraq,” Nonproliferation Review, Vol. 23, Nos. 1–2 (2016), p. 143, <https://doi.org/10.1080/10736700.2016.1186875>.

105 Solingen, Nuclear Logics, p. 149.

106 Leslie Thorne, "IAEA Nuclear Inspections in Iraq," IAEA Bulletin, Vol. 34, No. 1 (1992), p. 21, <https://www.iaea.org/sites/default/files/publications/magazines/bulletin/bull34-1/34102451624.pdf>.

107 Ekéus, “Lessons of UNSCOM,” p. 143.

108 Both the director general and the Board of Governors cited “non-compliance” in their reports, explicitly invoking Article XII. See IAEA Board of Governors, “Iraq’s Non-compliance with its Safeguards Obligations,” GOV/2531, July 18, 1991, <https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/Disarm%20GOV2531.pdf>.

109 IAEA Board of Governors, “Iraq’s Non-compliance,” p. 2.

110 Findlay, Proliferation Alert!, p. 27.

111 Findlay, Proliferation Alert!, p. 19.

112 Charter of the United Nations, June 26, 1945, Chapter VII.

113 In 1990, Jon Jennekens, the head of the IAEA Department of Safeguards, claimed Iraq’s cooperation under safeguards had been “exemplary.” Gudrun Harrer, Dismantling the Iraqi Nuclear Programme: The Inspections of the International Atomic Energy Agency, 1991–1998 (Abingdon: Routledge, 2014), p. 31.)

114 IAEA, “The Structure and Content of Agreements,” paragraph 19.

115 Charter of the United Nations, Chapter VII.

116 United Nations, “United Nations Security Council: Functions and Powers,” n.d., <https://www.un.org/securitycouncil/content/functions-and-powers>.

117 Brad Roberts, “Revisiting Fred Iklé’s 1961 Question, ‘After Detection—What?’,” Nonproliferation Review, Vol. 8, No. 1 (2001), p. 21, <https://www.nonproliferation.org/wp-content/uploads/npr/81rob.pdf>.

118 UN Security Council, “The responsibility of the Security Council in the maintenance of international peace and security: Decision of 31 January 1992 (3046th meeting): statement by the President,” <https://www.un.org/en/sc/repertoire/89-92/Chapter%208/GENERAL%20ISSUES/Item%2028_SC%20respons%20in%20maint%20IPS.pdf>.

119 Morgenthau, Politics Among Nations, p. 314.

120 Fred Charles Iklé, “After Detection—What?,” Foreign Affairs, Vol. 39 (January 1961), p. 208, <https://www.foreignaffairs.com/articles/1961-01-01/after-detection-what>.

121 Iklé, “After Detection,” p. 209.

122 Thomas A. Halsted, “Arms Treaty Foes Distort Soviet Record,” Los Angeles Times, December 7, 1986, <https://www.latimes.com/archives/la-xpm-1986-12-07-op-1362-story.html>. Weinberger was referring to the Standing Consultative Commission, a forum developed for the Strategic Arms Limitation Talks for discussion of compliance issues.

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Robert J. Hughes

Robert Hughes is currently a deputy science adviser to the Nuclear Threat Reduction Department at the United Kingdom's Atomic Weapons Establishment. He specializes in nuclear arms control and holds the role of technical authority for research into technologies supporting verification of nuclear treaties. He is also a chartered physicist with the Institute of Physics. He has a master’s degree in physics from the University of Nottingham and a master’s degree in arms control and international security from King’s College London.