Hard Law, Soft Law, and Non-Law in Multilateral Arms Control: Some Compliance Hypoteses

Article excerpt

I. INTRODUCTION

Perhaps the single most important issue concerning the role of law in arms control1 is whether parties are more likely to comply2 with the fundamental obligations of a binding treaty instrument, than comply with a norm they have indicated support for, but to which they are not legally bound.

Concluding arms control treaties does not guarantee compliance; this should be obvious from the fact that several important multilateral arms control agreements have been violated. Moreover, the violations were not mere paperwork errors or delays in implementation, but were violations of the very object and purpose of the treaties. The Soviet Union, we now know, made large amounts of biological agents for weapons, in violation of its obligations as a party to the Biological Weapons Convention ("BWC").3 Iraq violated the 1925 Geneva Protocol, to which it had been a party since 1931, by its extensive use of chemical weapons against Iranian forces during the Iran-Iraq war.4 Iraq and North Korea have both clearly violated the essence of the Nuclear Nonproliferation Treaty ("NPT")5 by establishing programs aimed at acquiring nuclear weapons, and by possessing significant nuclear materials and equipment without complying with the inspection system ("safeguards") of the International Atomic Energy Agency ("IAEA").6

While the record of compliance with arms control treaties is far from perfect, it is statistically quite good. The incidents listed above are the only confirmed violations of the object and purpose of a multilateral arms control treaty. There has been one suspected violation of the Limited Test Ban Treaty ("LTBT") and a number of suspected violations of the Geneva Protocol and the BWC.7 Moreover, there have been many minor violations involving reporting requirements, compliance deadlines, and other less strategically significant provisions. Still, major violations of treaty obligations are the exception rather than the rule, and the overall compliance record in arms control is a good one.

Multilateral arms control agreements, and actions that might be taken pursuant to them, are among the few ways the international community can attempt to keep the world from becoming increasingly dangerous as the economic and technical capacity to produce and deploy highly lethal weaponry inevitably spreads.8 As the alternatives to arms control either appear unrealistically optimistic or are likely to make things worse, it is hardly quixotic for the international community to negotiate arms control agreements, and to put forth considerable efforts to nurture and improve the resulting legal regimes, in the belief that most countries will comply most of the time.

This Article sets forth some of the issues that arise in assessing compliance in the arms control field, but with primary emphasis on multilateral arms control. It then poses hypotheses concerning compliance with multilateral arms control measures that seem to be suggested by the compliance record, and which may merit further investigation. Finally, it concludes with some preliminary observations on what arms control compliance may suggest for international law and international relations theory.

II. ISSUES RELATED TO COMPLIANCE

While compliance per se is a vital issue, it is hardly the only important question concerning the role of law in arms control.9 Other matters can affect a treaty's effectiveness, such as the degree to which essential nations become parties to the treaty. If key parties remain outside the treaty, it increases pressure on the other states to withdraw or to cheat. This was one of the main difficulties with the pre-World War II Naval Agreements (to which Germany was not a party) and is the single largest weakness of the NPT regime, as India, Pakistan, and Israel remain nonparties.

Another important matter that impacts on compliance is the clarity of the instrument. This was a major problem leading to disputes between the US and the Soviet Union over the LTBT,10 and the controversy of whether Iraq violated the Environmental Modification Treaty ("ENMOD") during the Persian Gulf War. …