STRENGTHENING THE RULE OF LAW
UN Department of Public Information, Dag Hammarskjöld Library
United Nations, New York
October 30, 2003
I first want to thank Paul Hoeffel and the Department of Public Information for organizing this briefing on this important topic.
Early this year, Apex Press published Rule of Power or Rule of Law? An Assessment of U.S. Policies and Actions Regarding Security-Related Treaties. The book examines the current state of nine treaties: the Nuclear Nonproliferation Treaty and other nuclear treaties, the Chemical and Biological Weapons Conventions, and treaties on landmines, global warming, and the International Criminal Court.
The book has two central themes: that these treaties, while no panacea, contribute immensely to the security of every individual on this planet – to human security, if you will; and that the policies of major states, notably the United States, are undermining the developing treaty regimes.
I believe the book demonstrates what NGOs, working together, can accomplish. It is based on a report brought out in 2002 by the Institute for Energy and Environmental Research and the Lawyers’ Committee on Nuclear Policy. It includes contributions by persons from the UN office of the Women’s International League for Peace and Freedom, Human Rights Watch, and the Women’s Caucus for Gender Justice. I hope that it is a harbinger of future collaborative work by NGOs on rule of law themes, across sectors of disarmament and security, human rights, the environment, and development and global economic governance.
Let’s start with the basics. What is the value of global security treaties and the regimes they establish?
· They articulate global norms, setting forth universally applicable expectations against genocide, against weapons of mass destruction, for preservation of the environment, for human rights.
· They provide predictability and accountability, promote learning, and develop confidence, trust and expertise.
· They provide criteria to guide states’ activities and a focal point for public discussion.
These advantages are demonstrated by the development of the NPT regime. At the outset, the nuclear weapon states understood the NPT as an asymmetrical bargain, imposing specific, enforceable obligations in the present on other states not to acquire nuclear weapons, while requiring of the nuclear weapon states only a general and vague commitment to good faith negotiation of nuclear disarmament, to be brought to fruition in the distant future if ever. In an outstanding example of regime evolution, in the 1990s this view was rejected decisively. After the 1995 and 2000 Review Conferences, as well as the 1996 advisory opinion of the International Court of Justice, it is now established that the NPT has a symmetry of obligations: the disarmament obligation is to be met in accordance with criteria of transparency, verification, and irreversibility. Specific measures are to be embedded in legally binding agreements, so as to “bring to a conclusion,” in the words of the International Court of Justice, “negotiations on nuclear disarmament in all its aspects under strict and effective international control.”
In the first few years of the 21st century, unfortunately, global security treaties are under assault. Some examples:
In the case of the NPT, nuclear development proceeds in the three nuclear-armed states outside the NPT, Israel, India, and Pakistan, in regions of high tension. North Korea has announced its withdrawal from the NPT. And on the disarmament side of the ledger, there is considerable backsliding. For the first time in the history of nuclear arms control, reductions under the Moscow Treaty are not subject to verification and are not irreversible. Thus in addition to the 2000 or so long-range deployed warheads permitted by the treaty in the year 2012, the United States plans to retain a “responsive force” of 2000 or so warheads capable of redeployment in weeks or months. The Comprehensive Test Ban Treaty – a key disarmament commitment under the NPT - has yet to enter into force, due largely to U.S. opposition.
In the case of the Biological Weapons Convention, negotiations on an agreement to establish a verification regime are indefinitely suspended, again due to the US position. That means that for biological arms, unlike chemical and nuclear weapons, there are no verification mechanisms like declarations regarding research facilities and challenge inspections.
For several key treaties, powerful and populous states have not become parties. Thus the five most populous countries in the world, China, India, the United States, Russia, and Indonesia, are not parties to the Statute of the International Criminal Court. For the Landmines Treaty, China, India, Russia, the United States, Pakistan, and other major countries are not parties. Russia, China, and the United States are not parties to the Kyoto Protocol, though Russia may soon ratify.
These developments are deplorable, to put it mildly, because they deny the world the security benefits offered by those regimes. Furthermore, they destabilize global norms and institutions generally, as states instead turn to the threat or execution of preemptive military action to ward off proliferation threats. This severely undermines UN Charter restraints on threat or use of force as well as the authority of the Security Council and the General Assembly.
The stakes are enormous in the debate over the future of global security regimes. We must therefore consider carefully the arguments that are put forward against these regimes.
1) One argument is that they instill false confidence: states may make declarations, allow inspections, and participate in international conferences, and still cheat.
Response: Indeed, there should be no complacency. Assessments should be based on national intelligence as well as information from verification regimes – though the U.S. failure to find WMD programs in Iraq indicates that greater credence should be given to international inspection bodies than to national intelligence estimates.
2) A related argument is that global security regimes obstruct efforts by law-abiding states to improve their military capabilities, but cannot stop all violations.
Response: The fact that there are law breakers is not a sufficient reason to scuttle the law. It does suggest that better detection capabilities are needed, like the biological weapons protocol on verification and the Comprehensive Test Ban Treaty. There are other possible resources as well. In the First Committee this fall, there has been serious discussion of making UNMOVIC a permanent, UN-based body, especially but not only because it would provide a capability for detecting violations of the ban on biological weapons.
3) The most important argument against global security regimes is a general one: that they rely on a false assumption that there really is international law. Thus according to John Bolton, U.S. Undersecretary for Arms Control and International Security, writing before he assumed office, treaties do not impose true international legal obligations. His chief argument is that a coherent, legitimate, and consistently applied international enforcement framework is lacking.
Response: Part of the answer, as John Jay, one of the framers of the U.S. Constitution, understood long ago, is that legal commitments are binding because states reciprocally intend them to be so and act accordingly. It is also true that there are multiple means of strengthening enforcement. One is to expand and reform the Security Council, to build its legitimacy as an enforcer of global norms. Another is to make the International Criminal Court an effective institution. Another is for more states to accept the jurisdiction of the International Court of Justice, which decides disputes among states.
For defenders of national “sovereignty,” these arguments will not suffice, because they imply still more internationalism. But in an age in which access of both state and non-state actors to all the elements of high-tech civilization – including WMD components - is growing exponentially, security requires creating and sustaining workable international regimes and institutions, not tearing them down.