<b>Bijsluiter</b>. De hyperlink naar het originele document werkt niet meer. Daarom laat Woogle de tekst zien die in dat document stond. Deze tekst kan vreemde foutieve woorden of zinnen bevatten en de opmaak kan verdwenen of veranderd zijn. Dit komt door het zwartlakken van vertrouwelijke informatie of doordat de tekst niet digitaal beschikbaar was en dus ingescand en vervolgens via OCR weer ingelezen is. Voor het originele document, neem contact op met de Woo-contactpersoon van het bestuursorgaan.<br><br>====================================================================== Pagina 1 ======================================================================

<pre>Centennial of the First International Peace Conference                                                               PRELIMINARY REPORT
Armament Questions                                                                                                                  Blix i
                                                                                                                                        -    -
     DEVELOPMENT OF INTERNATIONAL LAW RELATING TO
      DISARMAMENT AND ARMS CONTROL SINCE THE FIRST
              INTERNATIONAL PEACE CONFERENCE OF 1899
             Preliminary Report prepared for the 1999 Centennial of the First
                                          International Peace Conference
            pursuant to United Nations General Assembly Resolution 52/1 54 of 15 December 1 997 and UN DocumentA/C 6/52/3
                                                                                                                              Hans BLIx
                                         Table of Contents
                                                         Airns of the First Hague Peace Conference
                                                 .1               The peaceful settiement of disputes                                      1
                                                1.2               Limitations in the means and methocls of warfare, en
                                                                  humanitarian/rationalistic grounds                                       3
                                                         (a)      Non-discrirrnation and the protection of civilians
                                                                                                                                           4
                                                         (b)       Excessively” cruel weapons                                              5
                                                         (c)      Terror weapons                                                           5
                                                1.3               The burden of armaments                                                  7
                                                1.4               Focus on the time after the First Hague Peace Conference                 8
                                         II.             Realization of the aims of the First Hague Peace Conference regarding
                                                         disarmament and arms control in todays world
                                                                                           -                                               9
                                                11.1              Limitations on the level of armaments                                    9
                                                         (a)      Convenfional weapons                                                    9
                                                         (b)      Nuclear weapons                                                        10
                                                11.2.             Prohibition or restriction of use of specific weapons
                                                                                                                                         11
                                                         (a)      The 1925 Geneva Protocol                                               11
                                                         (b)      The 1977 Protocols Additional to the Geneva Conventions and the
                                                                  Convention of 1981                                                     12
                                                11.3.             Prohibition of nuclear testing                                         13
                                                         (a)      The Partial Test Ban Treaty                                            13
                                                         (b)      The Threshold Test Ban Treaty                                          14
                                                         (c)      The Comprehensive Nuclear Test Ban Treaty                              14
                                                         (d)      The Environmental Modification Treaty                                  15
                                                11.4              Prohibition of developrnent and acquisition of specific weapons        16
                                                         (a)      The Biological Weapons Convention                                      16
                                                         (b)      The Non-Proliferation Treaty                                           17
                                                         (c)      The Chemical Weapons Convention                                        19
                                                         (d)      The Landmines Treaty                                                   19
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                      Blix ii
                                                                                                                                             -   -
                                          III.           Common issues seeking their solution                                                  20
                                                111.1             The issue of verification                                                    23
                                                         (a)      Self-declarations as the basis for verification                              24
                                                         (b)      Means of verification not requiring access to the state: “national technical
                                                                  means of verification                                                        25
                                                                  1        satellites                                                          26
                                                                  2        analysis of samples                                                 26
                                                                  3        seismic monitoring                                                  28
                                                                  4        intelligence                                                        28
                                                         (c)      Means of verification requiring access                                       31
                                                                  1        On site routine inspection                                          31
                                                                  2        Special inspections (IAEA), challenge inspections (CWC) and on
                                                                           site inspections (CTBT)                                             34
                                                         (d)      Iraq as a watershed in the field of veilfication                             36
                                                         (e)      The residue of uncertainty in verificatioi,                                  37
                                                         (f)      “Managed access’                                                             40
                                                111.3.            Compliance                                                                   43
                                                         (a)      What degree of uncertainty about compliance is tolerated ‘                   44
                                                         (b)      Compliance measures supplemented by possible counter-proliferation 745
                                                         (c)      Verification of compliance with a cut-off agreement
                                                                                                                                               46
                                                         (d)      Compliance with a total ban on the possession of nuclear weapons       . .   46
                                                         (e)      Means of inducing compliance                                                 47
                                                                  1        Verification and detection as means of deterring non-complianc&I.7
                                                                  2        Break-down of treaty relation fikely result of non-compliance 48
                                                                  3        Non-compliance giving other treaty parties a righi to withdraw 48
                                                                  4        Risk of retaliation as a means of inducing compliance               49
                                                                  5        Risk of collective sanctions as a means of inducing complianceso
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<pre> Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
 Armament Questions                                                                                                                  Blix 1
                                                                                                                                         -   -
                                           Aims of the First Hague Peace Conference
                                           1      Looking back at the very end of the 2Yh century on the aims
                                           that animated the First Hague Peace Conference in 1899 one may
                                          feel some optimism as to their further progressive and, perhaps
                                           eventually full realization an optimism for which there would not
                                                                                -
                                           have been much justification even in the mid 1 98as. The end of the
                                           Cold War between the Communist ruled countries and the market
                                          economy countries stands out as the closing of a long and perilous
                                           period during which state conduct radically different from that sought
                                          at the Conference was a distinct possibility namely “mutually
                                          assured destruction” (MAD) through nuclear weapons. After the
                                          close of this period a door may now be opening to another era in
                                          which armed force may no longer be used on a global scale,
                                          although it may stijl not be avoided at the regional and national
                                           levels.
                                          2      Whîle the world of 1 999 is thus vastly different from that of
                                           1899 and even raises hopes of the eradication of war between great
                                          powers, it is of interest to note that many of the sentiments and
                                          considerations which motivated the governments in 1899 remain
                                          alive, relevant and more likely to bear fruit to-day. Three main aims
                                          of the 1899 Conference are identified below and will be briefly
                                          discussed as the starting point of this report:
                                          1      the wish to promote the peaceful settlement of disputes
                                          2      the wish to limit the cruelty of warfare on human itarian/
                                                 rationalistic grounds, and
                                          3.     the wish to limit the burden of armaments.
                 1.1                      The peaceful settiement of disputes
                                          3      The first and fundamental aim of the Conference was to seek
                                          “the most effective means of ensuring to all peoples the bene fits of a
                                          real and lasting peace” (Russian note of 30 Dec. 1 898). Considering
                                          that countless armed conflicts and two world wars have been fought
                                          since the First Hague Peace Conference took place the ambition
                                          cannot be said to have had much success. It must be recognized,
                                          however, that the search for ways and means of peacefully settling
                                          disputes between states that are sovereign and equal was not new
                                          in 1899 and is still on to-day, and that the search of the conference
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<pre> Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                  BIix-2 -
                                           was wide reaching, well articulated and marked progress over the
                                           past.
                                          4.     We must note that the “classical” methods of conciliation,
                                           mediation, arbitration and judicial settlement, although used more
                                           extensively to-day than in 1899, have not changed dramatically in
                                          the last 100 years. However, several other factors that are of great
                                           importance for the peaceful settlement of disputes have changed
                                          considerably.
                                          5      A large number of regional and universal intergovernmental
                                          institutions for co-operation and mutual adjustment are now active,
                                          which did not exist 100 years ago. The United Nations is the all
                                          embracing organization in terms of membership and functions,
             /      ç                     including the aim of saving the world from “the scourge of war”. But
                                          many other organizations, too, like the regional OSCE for Europe,
                                          the OAS for the Americas, the OAU for Africa and APEC for South
                                          East Asia or sectoral ones, like GATT for international trade and
                                           ICAO for aviation, have conflict preventing or conflict ettling roles.
                                          What is also new at this time is that the mutual dependence of states
                                          -e.g. in terms of communications, finance and trade- has increased
                                          so much that leverages have arisen which can be used in the efforts
                                          to help prevent the use of force and to settle disputes. In the last
                                          resort the Security Council is given the authority under the Charter
                                          (Arts 24 1 and 42) in the cases of breaches of peace or aggression
                                          to resort to or authorize the threat or use of force on behalf of the
                                          state community In the new climate of détente the required majority
                                          for such action comprising the five permanent members is no
                                          longer a condition that renders the authority in large measure
                                          hypothetical Even though the Council created some 50 years ago,
                                          no longer well represents the economic military and political power
                                          in to-day’s world and the informal G 7/8 group in some respects
                                          could wield more power, effective action by the Security Council
                                          acting under the legal authority of the U.N. Charter is now a more
                                          distinct possibility than it used to be in the bipolarized world of the 45
                                          first years of the United Nations.
                                          6      Thus, the institutional conditions are far more favourable
                                          to-day than they were 100 years ago for preventing or stopping
                                          armed conflicts between states. With the end of the Cold War there
                                          is also no nation ready to use force in crusading for a particular
                                          social or economic organization. Although fundamentalist doctrines
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<pre> Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                   Blix 3
                                                                                                                                         -  -
                                          are preached or pursued here and there, and fanaticism has by no
                                           means disappeared, pragmatism is by and large dominating.
                                          7       Another favourable factor of great practical importance to
                                          reduce the risk of armed conflicts to-day is that territorial
                                          controversies between great powers have all but disappeared or lost
                                          relevance. In Europe the long disputed Oder-Neisse line is settled.
                                           In any case, It will be a line of less significance among European
                                          Union partners Simmering territorial controversies between Greece
                                          and Turkey are -barely- kept under a hd with the help of a common
                                          institutional framework NATO In Asia the formerly disputed long
                                          border between China and Russia is no longer a subject of
                                          controversy and the unsolved controversy between Japan and
                                          Russia about the Kurile islands seems unlikely to Iead to any use of
                                          force Territorial disputes seem also to have faded in South
                                          America while Africa remains an area where disputes about territory
                                          and yet unsettled borders may still easily erupt and cail for
                                          international efforts of settlement.
                                          8       Yet another factor that will be noted further down is that the
                                          existence of nuclear weapons and the risk that they could be used in
                                          an armed conflict might have a restraining influence on pressures to
                                          initiate the use of armed force
                 1.2                      Limitations in the means and methods                                of warfare, on
                                          humanitarian/rationalistic grounds
                                          9       A second powerful sentiment behind the efforts at the First
                                          Hague Peace Conference had both humanitarian and rationalistic
                                          roots While it was realized that armed conflicts were inevitably
                                          cruel, it was feit that the business of war was not to give vent to
                                          hatred, but to prevail over an adversary to ach ieve a specific
                                          objective, e.g. to take some territory. As the purpose was not to
                                          inflict pain and suffering, acts which had such effect and which were
                                          not necessary to attain the objective of the armed conflict, could not
                                          be rationally justified and should be excluded on humanitarian
                                          grounds. And as civillans were seen to have only marginal
                                          importance to the armed contest, they could and should be protected
                                          -so long as they did not take part in the armed actions and thus
                                          became of importance to that contest. They could be affected by
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 4
                                                                                                                                       -   -
                                         attacks on military targets but were not themselves legitimate
                                         targets. A conclusion was that indiscriminate means and methods
                                         of warfare, which would make them targets, would be impermissible.
                                          10    Also, the rationale of war did not call for the maiming of the
                                         enemy. It was considered enough to disable armed enemy soldiers
                                         to prevent them from taking further part in the armed contest The
                                         well known formulations of the St. Petersburg declaration of 1868
                                         stated
                                                  “that the only legitimate object which States should endeavour
                                                to accomplish during war is to weaken the military forces of the
                                                enemy,
                                                 “that for this purpose It iS sufficient to disable the greatest
                                                possible number of men
           /                                     “that this object would be exceeded by the employment of
                                                arms which uselessly aggravate the sufferings of disabled
                                                men, or render their death inevitable”
        t’                               11     The preamble of the Second Hague Convention of 1899
                                         succinctly stated that the parties were inspired
                                                 “by the desire to diminish the evils of war so far as military
                                                necessities permit”
                                         and the attached regulations accordingly held -in Art 22- that
                                                 “the nght of belligerents to adopt means of injunng the enemy
                                                is not unlimited”
                                         (a)    Non-discrimination and the protection of civilians
                                         12     The “launching of projectiles and explosives from balloons or
                                         by other similar new methods” would put non-armed civilians at risk
                                         and was not perceived as a necessity of war. Hence it was rational
                                         and humane to adopt a ban on such methods and it was done in
                                         1899 for a period of five years (Declaration IV, 1).
                                         13     In the course of time air warfare and air bombardment came to
                                         be considered central means of war-fare and the ban of 1899
                                         (prolonged in 1907) lapsed. This legitimization is not vitiated by the
                                         doubts which exist as to whether “area bombardment” is a method of
                                         warfare that is militarily rational and that can be legally defended as
                                         a “necessity of war” (See Blix, “Area bombardment: rules and
                                         reasons” in the British Yearbook of International Law, 1978).
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 5
                                                                                                                                       -   -
                                          (b)    “Excessively” cruel weapons
                                          14    Declaration (IV, 3) of the 1899 Conference banned the use of
                                          “bul/ets which expand or flatten easlly in the human body” -the
                                         so-called dum-dum bullet. The necessity of war was not deemed to
                                          require more than piercing a hole to disable a man Bullets which
                                         did not have hard envelopes and which mushroomed on impact and
                                         tore their way mutilating the soldier, were not rationally required and
                                         the use of them therefore could and should be dispensed with.
                                          15    In the Geneva Conferences during the l97cYs to update the
                                          laws of war there was much discussion about a modern parallel -the
                                         small calibre high velocity projectile which while being fully coated
                                         was unstable in flight and tended to tumble on impact and obtain an
                                         effect similar to that of the dum-dum bullet However the lighter
                                         weight of the high speed bullet allowing the soldier to carry more
                                         ammunition, was seen as such a rational advantage from a military
                                          point of view that t did not prove possible to get agreement banning
                                         their use
                                          (c)    Terrorweapons
                                          16    One ban on use that was achieved in 1899 (Declaration IV 2)
                                         related to “projectiles, the sole object of which is the diffusion of
                                         asphyxiating or deleterious gases” The rationale here appears to
                                         have been that the projectiles were perceived to be of “unnecessarily
                                         cruel” nature Later bacteriological weapons, gas and other
                                         chemical weapons generally as well as weapons relying for their
                                         effect chiefly on radiation (neutron bombs) have been seen as
                                         particularly odious -“terror weapon&’. As by and large such weapons
                                         have not been used, the abhorrence of them may have been strong
                                         enough to prevail over whatever arguments might have been
                                         advanced about their effectiveness.
                                          17    A similar condemnatory view has not prevailed regarding the
                                         use of incendiary weapons against military personnel despite
                                         arguments advanced that ffame throwers, napalm and the like, used
                                         against personnel, lead to excessive suffering. Their military value
                                          (“necessity”) has been deemed too great for some states to accept a
                                         ban on their use against military personnel (a restriction to protect
                                         civilians against them is mentioned below).
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<pre>Centennial of the First International Peace Conference                                                             PRELJMINARY REPORT
Armament Questions                                                                                                                 BIix-6-
                                          18    The post World War II discussions about the legality of nuclear
                                          weapons illustrate that the rationales invoked for prohibitions of
                                         specific weapons have not changed very much. Their use is
                                         protested both on the ground that their effects allegedly cannot be
                                          limited to legitimate military targets and that they are thus by nature
                                          indiscriminate, and on the ground of excessive cruelty (heat and
                                          radiation). However, the argurnents have not led to agreement on
                                         the prohibition of use of these weapons. The consensus advisory
                                         opinion of the International Court of Justice in 1996 on the legality of
                                         the threat or use of force of nuclear weapons pronounced only that
                                         there exists an obligation to pursue in good faith and bring to a
                                         conciusion negotiations leading to nuclear disarmament.
                                         19      Considering that nuclearweapons, fragmentation bombs,
                                         cluster bombs, fuel-air explosives and incendiary weapons for
                                         antipersonnel use have not been the subject of specific prohibitions
                                         of use, one is bound to conciude that the resuits over time of the
                                         humanitarian/rationalistic efforts to mitigate the grimness of war
                                         through the prohibition or restriction of use of specific weapons have
                                         been rather marginal. The main success has been in prohibiting the
                                         use of BC-weapons and -lately- antipersonnel lasers and
                                         land-mines Of course we do not know what horror weapons may
                                         have been stopped on the drawing board as a result of restraints
                                         based on the humanitarian/rationalistic concepts articulated at the
                                         Hague.
                                         20     One element of influence that should be discerned is public
                                         opinion. Although often invoked both at the end of the last century
                                         and later in support of prohibitions of specific weapons it is hard to
                                         avoid the impression that in the last resort it has been up to the
                                         military experts to judge whether a particular weapons usefulness to
                                         the armed contest is so great that the suffering it brings must be
                                         seen as a “necessity of war”. For the nuclear weapons widespread
                                         and intense engagement by fairly large segments of public opinion in
                                         many countries has not led even to acceptance of the non-first use
                                         proposition. The military value of the uncertainty about these
                                         weapon’s possible use has evidently been seen as great and has led
                                         several governments to consider such use as a potential “necessity
                                         of war”. It is not until we get to the recent Ottawa treaty on mines
                                         that we find a case where the publids assessment of what is a
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<pre>Centennial of the First International Peace Conference                                                            PRELIMINARY REPORT
Armament Questions                                                                                                                Blix-7-
                                          ‘necessity of war’ prevails. However, it remains to be seen whether
                                         the treaty will also be accepted by all great military powers.
                                         21     One Could make another -but uncertain- point about the very
                                         limited effects which the humanitarian/rationalistic Concept has had
                                         in the form of bans on the acquisition and bans or restrictions on use
                                         of all kinds of weapons with cruel or indiscriminate effects, namely,
                                         that precisely the fact that modern warfare and modern weapons
                                         -especially nuclear weapons- have become so cruel and have
                                         tended to affect the civilian populations so widely could now
                                         constitute incentives to achieve non-violent settiement of disputes
                                         “A nuclear war cannot be won and must not be fought” is now a
                                         familiar adage
                1.3                      The burden of armaments
                                         22     A third rationale behind the efforts at the First Hague Peace
                                         Conference in 1899 is one that has had strong echoes in modern
                                         times namely -to quote the Final Act of 1899 “that the restnction of
                                         military charges, which are at present [1899] a heavy burden on the
                                         world, is extremely desirable for the increase of the material and
                                         moral welfare of mankind”
                                         23     The Conference expressed the specific wish that governments
                                         might “examine the possibility of an agreement as to the limitation of
                                         armed forces by land and sea, and of war budgets” Regrettably it
                                         can be safely observed that the wish has had less impact on the size
                                         of armaments than has the global or regional security climate
                                         prevailing at any given time However, it can also be observed that
                                         in the current favourable global security climate ministries of finance
                                         will exert pressure within governments to reduce military
                                         expenditures in order to promote peaceful development and -to
                                         quote the Hague Conference- “the material and moral welfare” of
                                         people.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                  BIix-8-
                1.4                       Focus on the time after the First Hague Peace
                                          Conference
                                         24      It has not been the purpose of the preceding discussion to
                                          pass facile judgment on the relative successes and failures of the
                                         ambitioîis that were articulated at the First Hague Peace
                                         Conference. Rather the idea has been to show that several of the
                                         ambitions and rationales which inspired the actors of 1899 have
                                         remained vlid during the following 1 00 years. During this period the
                                         world to which the ambitions have apptied, has changed in ways that
                                         no one (except perhaps JIes Verne) could have imagined in 1899.
                                         The means of warfare and the resources for war have expanded
                                         many times: Two world wars have brought megakillings, mega
                                         destructionmegahorrors and ever increasing sufferings for the
                                         civilian populations, inter alia through air bombardment. The arma
                                         ment budgets did not shrink in this period. Rather, with more
                                         economic resources available, they skyrocketed when security
                                         concerns were high And while conventions e g regarding t
                                         prisoners of war, had great humanitarian importance during armed
                                         conflicts, the holocaust was more cruel and inhumane than anything
                                         previously witnessed.                                                   (“%J         /
                                         25     It would certainly be of interest to trace and analyse the many
                                         legal instruments which were drawn up prior totiie end of the
                                         Second World War (see for instance Goldbiat, i Agreements for
                                         Arms Control, published by SIPRI, 1982)’and which relate to the
                                         subjects treated at the First HaguePeace Conference There are
                                         the clauses on limitations of armaments imposed on vanquished
                                         states after the world wars the Covenant of the League of Nations
                                         as the first full scale world organization devoted to the settlement of
                                         disputes and the prevention war the Geneva Red Cross
                                         Conventions of 1929 and the Geneva Protocol of 1925 prohibiting
                                         the use of gas and other chemical weapons and bacteriological
                                         weapons. Such an analysis would help us better to understand
                                         some questions we face to-day. Yet, considering the colossal
                                         changes which have been brought by such developments as the
                                         process of decolonization and the global exercise of self
                                         determination, the end of the Cold War, and the accelerated
                                         integration of the states of the world into a “global villag&, it might
                                         be permissible to embark directly on a discussion of some of the
                                         results of and some of the issues which are central in to-dags efforts
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<pre>Centennial of the First international Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix -9 -
                                         to realize the aims and visions of the First Hague Peace Conference.
                                         Some considerations of this kind have already been advanced
                                         above in direct connexion with the description of three central aims
                                         of the conference.
                                         26   The focus in this report will be on issues concerning arms
                                         control and disarmament. There is no aim to completely cover the
                                         issues or to exmine all the agreements reached, rather the intention
                                         is to use the xamination of varlous agreements to zero in on
                                         problems and possibilities which exist in arms control and
                                         disarmament today notably those that are connected with
                                         verification of compliance -which appear central to progress
                                                       0/
                II.                      Realization of the aims of the First Hague Peace
                                         Conference regarding disarmament and arms control
                                         -  in today’s world
                                                                                                                  r
                                         27     As noted above the climate for agreements on arms control
                                         and disarmament has irnproved radically with the end of the cold
                                         war the dissolution of the Communist Soviet Union and the growing
                                         awareness of the catastrophic consequences of a war involving
                                         weapons of mass destruction between great powers Indeed a
                                         greater readiness to agree on measures to revent crises and to
                                         reduce the risk of armed conflict arose already before the end of the
                                         cold war, in the wake of the Cuban missile crisis in 1962 but after the
                                         end of the coid war the evolution has accelerated Agreements
                                         reached may be grouped underfur headings
                                         1      Limitations on the level of armaments
                                         2      Prohibitions or*restrictions of use of specific weapons
                                         3.     Prohibition of testing of specific weapons
                                         4.     Prohibition of development and acquisition of specific
                                                weapons.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 10
                                                                                                                                      -    -
                11.1                      Limitations on the level of armaments
                                          (a)    Con ventional weapons
                                         28     For many years during the cold war general and complete dis
                                         armarnent was discussed at the Geneva Conference on Disarma
                                         ment. However, it was mainly an exercise in public relations, one
                          //             that took place to the music of an armament race, both in the field of
                                         convention weapons and weaons of mass destruction One
                                         major touch-stone was the issue of verification From the Soviet side
                                         it was suggested that the “effective verification” which all agreed
                7/
                                         was necessary, should consist of full inspection of the destruction of
                                         weapons which was to take place -but no verification of the arsen als
                                         that remained This “bonfire” concept was rejected by the West and
                                         was seen as evidence that the whole Soviet carnpatgn for general
                                         and complete disarmament was a propaganda gimmick
          1
        (                                29     On the other hand after many years of fruitless discussions in
                                         Vienna between the Warsaw Pact countries and NATO countries
                                         during the last decade of the cold war, in the 1 980s, substantial
                                         reductions were agreed in the Treaty of 19 November 1990 on
                                         ConventionalArmed Forces in Europe, which entered into force in
                                                                                                                      1
                                         1992 and was updated in 1997 This regime comprises extensive
                                         arrangements for mutual verification and confideice building
                                         measures notably regarding on site inspections (Art XIV), on the
                                         use of national technical means for information e g satellites (Art   ,
                                         XV:1); on the duty not to interfere with such means (Art. XV:2); on
                                       r the duty not to conceal relevant objects (Art XV 3) on the creation
                                         of a joint group for consultation on implementation (Art. XVI); and on
                                  the right of withdrawal if a Party “decides that extraordinary events
                                         related to the subject matter of this Treaty have jeopardized its
                                         supreme interests” (Art. XIX:1. Cf. Discussion below, paragraph 43).
                                         (b)    Nuclear weapons
                                         30     The Strategtic Arms Limitations Treaty (SALT 1 and I between
                                         the United States and the Soviet Union committed the two states to
                                         important limitations in the possession of strategic nuclear weapon
                                         and launchers. Satellites were to provide a principal means of
                                         mutual verification of compliance.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 11
                                                                                                                                      -    -
                                         31     Significant arms reductions also occurred through the
                                          US-USSR Treaty on the eilmination of their intermediate-range and
                                         shorter-range missiles (INF), signed at Washington on 8 December
                                          1987. This treaty contained elaborate provisions (including a
                                         separate protocol) concerning verification, both th rough national
                                         technical means (Art. 12:1) and through on-site inspection (Art. Xl)
                                         and long term monitoring (Art. Xl:6). It also stipulated that neither
                                          party should interfere with the national technical means of
                                         verification used by the other party in accordance with the treaty (Art
                                         Xli 2 a) and t established a Special Verification Commission to
                                          resolve questions relating to compliance with the obligations
                                         assumed and to agree on such measures as may be necessary to
                                          improve the viability and effectiveness of the treaty (Art XIII)
                                         Withdrawal is possible if a Party “decides that extraordinary events
                                          related to the subject matter of this Treaty have jeopardized its
                                         supreme interests” (Art XV 2)
                                         32     The Strategic arms reduction treaty -START!- signed by the
                                          United States and Russia on 31 July 1991 and the START II signed
                                         on 3 January 1993 contain provisions on very substantial reductions
                                          in the stock nuclear weapons carriers and nuclear warheads. Under
                                         the second treaty it is envisaged that by 2003 each party shali have
                                          reduced the number of its nuclear warheads to a level of 3000-3500.
                                          Extensive provisions are made for verification.
                II 2                      Prohlbltlon or restrlction of use of specific weapons
                                         33     This category of regulations has not changed dramatically
                                         since the time of the First Hague Peace Conference in 1899, when
                                         the use of asphyxiating and deleterious gases and poison and
                                         dum-dum bullets was banned.
                                          (a)    The 1925 Geneva Protocol
                                         34     The Geneva Protocol of 1925 was a more elaborate -and
                                          perhaps a littie more extensive- ban, prohibiting all use of gas and
                                          chemical and bacteriological means in warfare (but not tear-gas in
                                         domestic riot control). Like the 1899 ban on the use of gases and
                                         dum-dum bullets, this ban of 1925 on the use of BC weapons had no
                                         verification mechanism. It was assumed that any violations would be
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix- 12-
                                         evident or could be established through ad hoc means of
                                         verification. Compliance would be induced, partly by the universal
                                         abhorrence of these weapons, partly by the awareness that a
                                         violation (at least regarding the use of gas) could bring retaliation in
                                          kind.
                                         35     The ban on the use of gas has been violated several times,
                                         e.g. by Germany prior to the Geneva Protocol of 1925 during the
                                          First World War by Italy during the war in Ethiopia (1936) in Yemen
                             /
                          /              (1967) and during the Iraq-Iran war in the late 198as The Chemical
                7/           Ç
                                         Weapons Convention will be discussed below
                                         36     No case of actual use in warfare of bacteriological (biological)
                                         weapons appears to have been proven, but a readiness to use such
                                         weapons (e g anthrax) seems to have been wide-spread
                                         (b)    The 1977 Protocols Additional to the Geneva Conventions
                                                and the Convention of 1981
                                         37     During the whole 1970’ conferences called either by the
                                         International Committee of the Red Cross (the ICRC) or the Swiss
                                         government dealt with what they called the “Reaffirmation and
                                         Development of International Humanitarian Law Applicable in Armed
                                         Conflicts” and what in UN terminology was called “Human Rights in
                                         Armed Conflicts” In plainer language the work dealt with the
                                         modernization of the rules applicable in armed conflicts including
                                         restrictions in the use of specific conventional weapons The whole
                                         of this work was guided by the humapitarian/rationalistic concept on
                                         which the First Hague Peace Conference and the instruments
                                         adopted at It was based The military input in the negotiations was
                                         strong, ensuring that the “military necessity” aspect was fully
                                         considered in the context of all proposed restrictions. While this
                                         reduced the humanitarian effect of many proposals it hopefully led to
                                         provisions which stand a better chance of being applied in action.
                                         38     In 1977 the conferences resulted in two Protocols Additional to
                                         the Geneva Conventions of 1949, one dealing with international
                                         armed conflicts, the other with non-international armed conflicts. An
                                         additional result was a Convention opened for signature in 1981
                                         containing three different protocols of Prohibitions or Restrictions on
                                         the Use of Certain Conventional Weapons which may be deemed to
                                         be Excessively Injurlous or to have Indiscriminate Effects. (On all
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 13
                                                                                                                                       -    -
                                          these instruments, see Kaishoven, F.: Arms, Armaments and Inter
                                          national Law, published in Receull des Cours, voL 191, 1985-11).
                                          39      For the purpose of this report which focuses on arms control
                                          and disarmament the convention and the three protocols attached to
                                          It are of interest One protocol (1) prohibits the use of weapons the
                                         primary effect of which is achieved by fragments which in the human
                                          body would be ,visibIeÇ X-ray,         Another protocol (II) contains
                                                                                 4
                                          restrictions in the use of mines,b!oby-traps and other devices It
                                          requires inter alia thaLmaps shall be made of preplanned mine-fields
                                          and introduces a duty on belligerents to exchange maps at the end
                                          of hostilities to facilitate the clearing of mines. It further establishes
                                          certain rules to reduce the risk of indiscriminate effects of mines laid
                                          by remote means and prohibits the booby-trapping of different types
                                          of objects, like toys and food. The third protocol (III) contains a ban
                                         on the use from the air of napaim and other incendiary weapons
                                         against cities, villages or other areas where there areconcentrations
                                         of civilians.                                                                           1
                                         40       It is evident that all three protocols are directly based on the
                                         concepts of “unnecessary suffering” and/or indiscriminate effects It
                                          is also dear that their scope was rather limited The military
                                         assessment of usefulness weighed heavily and prevailed in large
                                          measure over the public revulsion against the extensive use,
                                          particularly during the Viet Nam war of incendiary weapons with very
                                         cruel effects extremely injurious high-velocitÇ’ sriall caliber
                                              lectiles and remotely delivered anti-personnel mines with inherent
                                            ks of indiscriminate effects              ,
                                                                                                                 /
                                         41       None of the restrictions introduced in these protocols on the
                                         use of specific weapons were subject to any specific mechanism of
                                               fication. They were thus akin to older restrictions or prohibitions
                                         of us of specific weapons, like the 1925 Geneva Protocol on BC
                                         weapons. The Convention was of a “framework” type, allowing
                                         further protocols to be added, if and when negotiated (Art. 8:2 (a)).
                                         One such further protocol (IV) was adopted on 13 October 1995
                                         prohibiting the use and transfer of blinding laser weapons.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix-14-
                11.3.                     Prohibition of nuclear testing
                                          (a)    The Partial Test Ban Treaty
                                         42      The Partial Test Ban Treaty (PTBT) of 1963 which prohibited
                                         the testing of nuclear weapons and other nuclear expiosions except
                                         underground, did not ban the production or use of nuclear weapons,
                                         and was not based on the Hague concepts. Here a new motivation
                                         for restrictions turns up, namely, the wish to protect the global
                                         environment -in this case against radioactive fali-out, notably cesium.
                                         43      The treaty did not have any verification mechanism. It was feit
                                         that nationai technicai means, in particuiar for measuring seismic
                                         waves and radioactive fali-out, wouid suffice to give evidence of any
                                         nuciear expiosion that did not take piace underground. It was the
                                         first treaty which contained the ciause aiiowing a Party “exercising its
                                         national sovereignty” to withdraw from the treaty “if it decides that
                                         extraordinary events, reiated to the subject matter of this Treaty,
                                         have jeopardized the supreme interests of its country” (Art. IV).
                                         44      For many years a number of states resisted the proposal of a
                                         complete test ban, often contending that underground tests below a
                                         certain yield could not be detected and asserting that they could not
                                         take the risk of committing themselves to an unverified ban.
                                         (b)     The Threshold Test Ban Treaty
                                         45      A bliateral treaty between the US and the USSR was signed in
                                         1974 on the limitation of underground nuclear weapon tests the
                                         so-caiied Threshold Test Ban Treaty (TTBT) It committed the
                                         parties not to carry our any underground nuciear weapon test having
                                         a yieid exceeding 150 kilotons and to iimit the number of its
                                         underground tests to a minimum. The limitation was the result of the
                                         position that tests of iower yieid could not be reliably detected as
                                         well as the wish to retain the freedom to carry out some tests. This
                                         treaty referred expressly to the parties reiying on national technical
                                         means of verification at their disposai (Art. 11:1).
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 15
                                                                                                                                      -   -
                                          (c)    The Cornprehensive Nuclear Test Ban Treaty
                                         46     After many years of underground testing by the five declared
                                          nuclear weapon states the dead-lock was broken and the
                                          Comprehensive Nuclear Test Ban Treaty (the CTBT) was con cluded
                                          in September 1996. Its purpose may be said to be broader than the
                                          preceding two treaties, a_ it aims not only at guaranteeing that no
                                         further radioactive contamination will occur as a result of nuclear
                                         testing Iut also to impede the further qualitative development of
                                          nuclear weapons Although t has not yet (1998) entered into force
                                               India and Pakistan which have not adhered to t have tested
                                         and
                                          nuclear explosives in 1998, all other states, including the five
             /1
                                         declared nuclear weapon states have refrained from any testing
                                         after its conclusion.
                                         47     The CTBT contains an elaborate system of verification which is
                                          based on seismological radionuclide hydroacousc and infrasound
                                          monitoring It relies on monitoring stations all over the world and has
                                          its center in Vienna, where the organization of the treaty (CTBTO) is
                                          located. The Secretariat does not analyze and evaluate the data
                                         which the monitoring system obtains but transmits them to member
                                          states, which have to judge whether they consider that particular
                                          data suggest a nuclear test The member states -but not the
                                          secretariat- can ask for consultation and clarification and on-site
                                          inspections. In an urgent case of non-compliance, the Executive
                                          Council may bring the issue to the attention of the Security Council.
                                         48     As all the non-nuclear weapon states parties to the Non
                                          Proliferation Treaty are prohibited already by that treaty to test any
                                          nuclear explosive device, a comprehensive test ban treaty could
                                         theoretically have been restricted in its membership to the five
                                          declared nuclear weapon states and non-parties to the NPT (notably
                                          India, Pakistan and lsrael). However, the global interest in the
                                          comprehensive ban was such that there does not seem to have
                                          been any suggestion that the treaty could have been of less than
                                          universal membership.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Biix 16
                                                                                                                                      -    -
                                          (d)    The Environmental Modification Treaty
                                         49     Mention should perhaps also be made in this context of the
                                          1977 Con vention on the Prohibition of Military or Any Other Hostile
                                          Use of Environmental Modification Techniques (the EN MCD
                                         Convention). This treaty, too, did not aim at prohibiting the
                                         development or use of any particular weapon as excessively cruel or
                                         indiscriminate but aimed rather at preventing states from engaging
                                         “in military or any other hostile use of environmental modification
                                         techniques having widespread long-lasting or severe effects as the
                                         means of destruction damage or injury to any other State Party”
                                         (Art. 1:1).
                                         50     The background of the convention was the use during the
                                         Viet Nam war of artificial ram making through the seeding of clouds
                                         with silver iodide to cause difficulties for the enemy by muddying
                                         roads and flooding mes of communicatmon The convention was
                                         much broader in scope however and covered “any tehnmques for
                                         changing -through the deliberate manipulation of natural processes
                                         the dynamics, composition or structure of the Earth, including its
                                         biota, lithosphere, hydrosphere and atmosphere, or of outer space”.
                                         During the negotiations examples were mentioned, such as changes
                                         in ocean currents the triggering of earth quakes, cyclones tornadic
                                         storms etc
                                         51     Without specmfmcally saying so the conventmon relmes for
                                         verification on natmonal technmcal means In addition t enjoins the
                                         partmes to “consult one another in solvmng any problems which may
                                         arise” (Art. V: 1) and refers a party suspecting a breach to complain in
                                         the Security Council and to submit all relevant information and
                                         possible evidence (Art V 3) It does not contain the Test Ban
                                         Treaty-type of withdrawal clause in a case of an “extraordinary
                                         event” jeopardizing the “supreme interests” of a state party.
                11.4                     Probibition of development and acquisition of specific
                                         weapon S
                                         52     The prohibition of development and acquisition of specific
                                         weapons obviously represents a more ambitious approach than a
                                         prohibition of use or a restriction in use or numbers. 1f a statehas no
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<pre>Centennial of the First international Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix- 17-
                                          nuclear, chemical or biological weapons, it can use none. So great
                                          has been the concern for the dangers of a world loaded with nuclear,
                                         chemical and biological weapons that as regards these types of
                                         weapons It has been considered desirable to go beyond mere
                                          prohibitions of use and seek bans on the verypossession of the
                                         weapons. A number of treaties have this purpose.
                                         (a)     The Biological Weapons Con vention
                                         53     A convention on the prohibition of the development, production
                                         and stockpiling of bactenological (biological) and toxin weapons and
                                         on their destruction was conciuded in 1972 Unlike the
                                          Non-Proliferation Treaty and Chemical Weapons Convention
                                         discussed below and the Comprehensive Test Ban Treaty this
                                         convention does not have an institutional mechanism for verification
                                          Like the ENMOD convention (described above) t enjoins the parties
                                         to “consult one another and to cooperate in solving any problems
                                         which may arise in relation to the objective of... the Convention”
                                         (Art V) and refers the parties to complain to the Security Council
                                         presenting “all possible evidence” 1f it finds that another party is
                                         acting in breach. Parties are obliged to cooperate in carrying out
                                         any investigation initiated by the Council (Art. VI: 1 and 2). No Test
                                         Ban Treaty type of withdrawal clause (see above) is included.
                                          Efforts are at present underway to negotiate a specific verification
                                         agreement suppiementing the prohibitions contained in the biological
                                         weapons convention.
                                         54      It should perhaps be noted that while in the first half of this
                                         century biological weapons were considered as somewhat exotic
                                         and it was long believed that they would be practically difficult to use
                                         in a militarily effective way, there has been a more recent concern
                                         that these weapons -as well as chemical weapons- might be seen
                                         and developed as the “poor man’s” problems in using them might be
                                         overcome. The revelations during inspections in Iraq, especially in
                                          1998, have confirmed this view and contributed to the determination
                                         to add a verification mechanism to the prohibition of the production
                                         and acquisition of the weapons.
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<pre>Centennial of the First international Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 18
                                                                                                                                       -    -
                                          (b)    The Non-Proliferation Treaty
                                         55      The Non-Proilferation Treaty of 1968 obliges non-nuclear
                                         weapon states parties to refrain from acquiring nuclear weapons
                                          (Art. II) and nuclearweapon states parties (as well as other parties)
                                         to negtiate in good faith toward nuclear disarmament and general
                                         and complete disarmament (Art. VI). It entered into force in 1970
                                         and was extended without time limit in 1995 It is the most adhered
                                         to of all arms control agreements, having some 180 parties
                                             1
                                         56      The NPT is supplemented by a number of treaties committing
                                         states within specific regions to non nuclear weapon status. In
                                         addition to the basic obligation these treaties contain provisions of
                                         special interest to the specific regions Even before the NPT was
                                         concluded, the Tlatelolco Treaty for the Prohibition of Nuclear
                                          Weapons in Latin America was signed in 1967 and entered into
                                         force in 1968. It was the first agreement after theAntarctic Treaty of
                                          1961 to establish a nuclear weapon free zone. Several other
                                         regional instruments of similar thrust were concluded later:
                                         -       The 1985 Treaty of Rarotonga for the South Pacific,                            )
                                         -       The 1995 treaty of Bangkok for Southeast Asia,                                /
                                         -       The 1996 Treaty of Pelindaba for Africa.
                                                                                                                             1
                                                                                                                              /
                                         57      The philosophy of the NPT might be said to be to seek commit
                                         ments by all states which had not already at the time of the
                                         conclusion of the treaty manifested themselves through test
                                         explosions to be nuclear weapon st* to remain without nuclear
                                         weapons, and to seek a cornriiLiflt of the five declared nuclear
                                         weapon states to negotiate toward an elimination of those weapons
                                         The difference between the two chfferent types of commitments must
                                         be noted. In the case of non-nuclear weapon states the commitment
                                         not to acquire nuclear weapons is absolute. In the case of the
                                         nuclear weapon states there is only an obligation tonegotiate toward
                                         nuclear disarmament and, for that matter toward general and
                                         complete disarmament (in an advisory opinion of 1996 the
                                          International Court of Justice pronounced itself on this obligation;
                                         see above).
                                         58      During the nuclear armament race in the long years of the cold
                                         war, the failure of the nuclear weapon states to pursue meaningful
                                          negotiations on nuclear disarmament made the latter obligation look
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                BIix-19-
                                         cosmetic. In the view of many it concealed a permanent non
                                         recognized, but none-the-iess real, difference between the two
                                         categories of states. With the INF agreement, the START 1 and Ii
                                         and the incipient discussions about a total elimination of nuclear
                                         weapons, the declared aim of the NPT, namely, that the states which
                                         had not acquired nuclear weapons should not to do so and that
                                         hose five statesNhich had acquired the weapons should seek to rid
                                         themselves of them, has become more credible
                                         59     Aithough It was above all the nuclear weapons that marked the
                                         arrival of a new era in the security -or non-security- of states, fears
                                         similar to those evoked by the nuclear weapons were feit about
                                         bioiogicai and chemical weapons and have resuited in efforts to go
                                         beyond the non-use rules whiCh already existed for these weapons
                                         and estabiish rules about non-possession The biological weapons
                                         convention which preceded the NPT has already been discussed
                                                                                                                  J)
                                         above.                                                                                \
                                                                                                                  (T1
                                         (c)    The Chemical Weapons Con vention
                                         60     After many years of negotiations the Convention on the
                                         Prohibition of the Deveiopment Production Stockpiiing and Use of
                                         Chemical Weapons and on their Destruction -the Chemical
                                         Weapons Convention (CWC), was signed on 13 January 1993 in
                                         Paris As its official titie shows it contains comprehensive
                                         prohibitions regarding chemicai weapons It also provides an
                                         extensive regime of verification,which in many respects is inspired
                                         by the safeguards system of the IAEA but also improves on that
                                         system An international technicasecretariat comprising inter alia
                                         staff for on site inspections has been established at the Hague (Art
                                         V1II:D) and elaborate rules concerning ciarification, consuitation and
                                         challenge inspections are laid down (Art. IX). in cases of particular
                                         gravity the Conference of the parties shali bring the issue to the
                                         attention of the General Assembiy and Security Council of the United
                                         Nations. (Art. Xii:4). The convention contains a clause of the Test
                                         Ban Treaty type allowing a party to withdraw “if it decides that
                                         extraordinary events related to the subject-matter of this Convention,
                                         have jeopardized the supreme interests of its country” (Art. XVI:2).
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                BIix-20-
                                          (d)    The Landmines Treaty
                                         61      The Ottawa treaty on landmines was signed on 18 September
                                          1 997 and contains provisions on the prohibition of use, stockpiling,
                                          production and transfer of anU-personnel mines and on their
                                         destrution. This arms Control agreement is unusual in the sense
                                  ,—‘that action by non-governmental organizations to induce its
                                          negotiation and adoption.The motivations were the same as those
                          7              which animated the weapons restrictions reached at the turn of the
                                         century above all the tragiC and Cruel effects upon civilians of the
                                          many millions of anti-personnel mines which have been used, many
               /
                 /                       of which remain active decades after the end of hostilities.
              /
            /                            62      In providing for the total eliminiation of mines the Ottawa treaty
                                         goes far beyond the 1981 protocol on prohibitions and restrictions on
         /                               the use of mines, booby-traps and other devices. The treaty obliges
                                         the parties to report to the Secretary-General within 180 days of
                                         entry into force 0fl specific implementation measus which are to be
                                         taken (Art.7).                                                           î (]
                                         63      No on-going or periodic verification is foreseen, but annual
                                          meetings of the parties are foreseen to consider application and
                                          implementation. Furthermore, a party wishing clarification of
                                         questions relating to compliance can set in motion procedures under
                                         which, in the last resort a special meeting of the parties may be
                                         called and may by simple majonty decide on the dispatch of a
                                         fact-finding mission of experts to collect additional information on the
                                         spot or in other places directly related to the alleged compliance
                                          issue (Article 8:1-10).’Such a mission must be received, may bring
                                         equipment necessary for its task, be “given the opportunity to speak
                                         to all e1evant persons”and be granted access “to all areas and
                                          installations... where facts relevant to the compliance issue could be
                                          expected to be collected”. The mission shall report through the
                                          Secretary-General to the meeting of the parties. (Article 8: 11-17).
                                          Provisions on certain restrictions on access, e.g. regarding “sensitive
                                          equipment, information and areas” (Art. 8:14, b) seem inspired partly
                                          by formulas in the recent IAEA protocol on strengthened safeguards
                                          (see Art. 7 of IAEA INFCIRC / 540 of 1997).
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<pre> Centennial of the First International Peace Conference                                                               PRELIMINARY REPORT
 Armament Questions                                                                                                                 BIix-21  -
                 III.                      Common issues seeking their solution
                                          64       The foregoing discussion shows that the interests which
                                           motivated the participants in the First Hague Peace Conference are
                                           still relevant, forceful and driving today. There is the wish to settie
                                           disputes by peaceful means rather than force and we can see how a
                                           number of new factors promote an evolution in this direction af the
                                          end of the             century. For inter-state relations after the end of the
                                          cold war, we can register much success in the prevention of the use
                                          of armed force and in the peaceful settlement of disputes. As note
                                          above we might ascribe this welcome development first of all to the
                                          détente that has developed between great powers and blocks, the
                                          almost complete abandonment of ideological crusades backed by
                                          armed force, the emergence of effective new leverages and means
                                          of mutual influence, e.g. in trade and finance, the closer integration
                                          of states, including common institutions and an awareness of the
                                          horrors that armed conflicts between and blocks would bring.
                                          65       Even as regards what used to be termed non-international
                                          con flicts there is now a strong tendency for international action to
                                          prevent bloodshed. When faced with reports about atrocities and
                                          horrors resulting from armed action, the public everywhere seems to
                                          react in human solidarity and demand that their governments
                                          together with others under or without UN sponsorship take measures
                                          to stop the armed action While the UN Charter prescribes in Art
                                          2 7 that there shall be no intervention in matters which are
                                          essentiaNy within the domestic jurisdiction of member states unless
                                          they constitute a threat to international peace and security, the public
                                          af large is not very interested in fine points which determine if armed
                                          actions fall within domestic jurisdiction or not. In acute situations, as
                                          in Somalia or former Yugoslavia, the UN and states are driven to
                                          action to seek to stop local armed action. Indeed, the organized
                                          international community seems somewhat reluctantly to cross a
                                          threshold and to concern itself with non-international armed conflicts,
                                          not only through peace-keeping operations based on the consent of
                                          the parties but also through operations lacking such authorization.
                                          This signals a dramatic expansion in the ambitions to ensure that
                                          conflicts be settled by peaceful means -ambitions that may be even
                                          more difficult to fulfil than the ambitions to prevent international
                                          conflicts.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 22
                                                                                                                                      -    -
                                         66     When we examine the resuits of the aim to reduce the horrors
                                         of warfare by rules we find Iess radical Change from the time this alm
                                         was articulated at the First Hague Peace Conference. Modernized
                                         rules concerning land and air warfare have, indeed, been adopted in
                                         the two Protocol.s additional of 1977 to the Geneva Conventions of
                                          1949 and these conventions provide fairly modern rules concerning
                                         the treatment of prsoners of war and the protection of civilians in
                                         time of war Hqwever, the prohibitions or restrictions of use of
                                         specific weapons have not changed dramatically over the last
                                         huridred years -exception perhaps being made for blinding laser
                                         weapons and land-mines. Rather we have to register that the
                                         modern arsenals of weapons contain instruments of injury and
                                         destruction which are far more effective than those which existed at
                                         the time of the First Hague Peace Conference and that there is stiff
                                         resistance on the military side to forego any of these new weapons
                                         We should also not that the protection of the environment is a new
                                         motivation and ground for restrictions or prohibition of certain means
                                         and methods of warfare.
                                         67     It is the arrival of the nuclear weapons that leads to new
                                         thinking and new international agreements The traditional path of
                                         restriction of use is not very successful Numerous proposals to
                                         prohibit first use of nuclear weapons have been advanced but have
                                         not found sufficient support either because such rules were not
                                         seen as credible or because the risk of use -even first use- was
                                         regarded as a des irable element of deterrence
                                         68     Some restrictions have nevertheless en attained and
                                         deserve mention For instance, in connexion with the NPT the five
                                         permanent members of the Security Council -also being the five
                                         declared nuclear weapon states- have declared with various
                                         important reservations that they will not use nuclear weapons
                                         against a non-nuclear state party to the NPT.
                                         69     Restrictions in use not generally being regarded as bringing
                                         sufficient reassurance concerning weapons of such destructive
                                         capacity as the nuclear with a capacity to obliterate huge cities in
                                         one single blow, the approach taken has been to seek legally
                                         binding commitments about the very non-acquisition of these
                                         weapons, chiefly through the NPT and regional treaties. The need
                                         for reassurance has also lead to the demand for verification that
                                         these commitments are respected. While bans on the use of a
                                         weapon which it is not prohibited to possess, have not traditionally
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<pre>Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armamerit Questions                                                                                                               BIix-23-
                                         called for permanent mechanisms of verification, we find that the
                                         prohibition of possession triggers demands for continuous
                                         verification to bring the desired confidence about compliance.
                                         70     The philosophy whiCh has thus developed for nuclear weapons
                                         has rubbed off on two other groups of weapons -termed weapons of
                                         mass destruction- namely chemical and biological weapons The
                                         bans on use of these weapons (already largely existing in the
                                         instruments of the Hague in 1899 and Geneva in 1925) have been
                                         transformed into bans on possession through the Biological
                                         Weapons Convention (1972) and the Convention on Chemical
                                         Weapons of 1993 And while the latter convention as noted above
                                         contains an elaborate verification system the former is yet to be
                                         suppiemented in this regard Further we find that current day
                                         reductions in weapons arsenals both conventional and nuclear are
                                         also subjected to extensive verification
                                         71     Verification is therefore a central subject when it comes to the
                                         reduction or elimination especially as regards weapons of mass
                                         destruction It will be discussed in some detail below By way of
                                         conclusion the issue of compliance will be taken up
                111.1                    The issue of verification
                                         72     While there was hardly any reason to raise the issue of
                                         verification of non-use of specific weapons at the time of the First
                                         Hague Peace Conference verification now appears as a central
                                         issue and indispensable element in practically all bans or restrictions
                                         on the possession of specific weapons As we look forward to
                                         further regulations in the arms control and disarmament field we
                                         therefore have reason to analyse the problems and possibilities
                                         which exist in the field of verification. An extensive experience
                                         already exists in these two respects and we can try to learn from
                                         them.
                                         73     In no area are states as jealous of their exclusive power as in
                                         the control of their territories. This is a centra! impediment to
                                         effective verification, notably on site inspection. It is reported that in
                                         the 1gth
                                                    century Turkey objected to the stationing of an international
                                         “sanitary station” to help prevent epidemics being spread by pilgrims
                                         going to or from Mecca. Turkey apparently held -as very likely many
                                         other states would have done at that time- that such stations were
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 24
                                                                                                                                      -    -
                                          incompatible with her sovereignty. During the discussions of the
                                         question of general and complete disarmament in the 1 960s It was
                                         held by the Sovjet Union -at that time a secluded state- that
                                         inspection apart from witnessing the actual destruction of weapons
                                         would be tantamount to espionage.
                                     —74        The world has come a long way since such attitudes
                                         dominated our thinking It is now generally realized that in a world
                                         moving toward less weapons notably less weapons of mass
                                         destruction extensive verification and on site inspection are
                                                                                                /
                                         indispensable, Indeed, the more far-reachirig the restrictions
                                         contemplated the stiffer the demands for verification become to give
             /                           confidence against cheating 1f an agreement wJe reached
                                         a ceiling at 1000 for some weapon, non-detection of 10 or perhaps
                                         even 100 might not matter much in terms of security but if the
                                         commitment is to have 0 weapon non-detection of even 1 could be
                                         a dramatic matter. As was noted above part of th reason for the
                                         long delay in the ach ievement of the complete test ban treaty
                                         (CTBT) was the position taken by several states that it could not be
                                         adequately verified given the control techniques existing at the time
                                         There is no doubt that in the discussion of proposals for a complete
                                         elimination of nuclear weapons the verification issue will be
                                         prominent
                                                                            )                                               /
                                         75     Fortunately with detente growing interrti al intbgration
                                         governments have generally becomeiu%dFe accommodating as
                                         regards the acceptance of verifica1Itje_$rrovision of information
                                         on items subject to verification and on site inspection The notion
                                         that “sovereignty makes it impossible for a government to accept
                                         that functionaries of a foreign state or an international organization
                                         perform some official activities within its jurisdiction is giving way to a
                                         more pragmatic -but still restrictive- attitude which accepts some
                                         such activities when they are deemed to be in the interest of the
                                         state and take place on the basis of consent. International
                                         verification has also been facilitated by new techniques which have
                                         come into being and which are highly informative without actually
                                         intruding on the ground of states.
                                         76     It is possible that the general public is even more
                                         accommodating to inspection than governments which exercise the
                                         1 sovereignty. World public opinion did not seem the least
                                         states
                                         surprised that an international crisis erupted in early 1998, when lraq
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 25
                                                                                                                                      -    -
                                          raised obstacles to United Nations inspection of the palaces of the
                                          President of lraq.
                                          (a)   Seif-declarations as the basis for verification
                                         77     Agreements only providing for non-use of weapons did not as
                                         we have seen, normally provide mechanisms or procedures for
                                         verification Some modern agreements e g the biological weapons
                                         convention of 1972 (Articles V and VI), refer only in general terms to
                                         verification that might be instituted by the Security Council Where
                                         there is a higher level of ambition as regards verification, as in the
                                         multilateral NPT and CWC, the first level is formed bydeclarations
                                         by the state accepting verification. The preparation of such
                                         declarations may require considerable work by the government and
                                         industry of a state. At the same time the government may well, for
                                         its own purposes, want to have full knowledge of, say various
                                         nuclear or chemical activities which take place within its territory
                                         Seen in this light the international verification of such declarations
                                         may provide the state with a highly desirable quality control For the
                                         international organ ization receiving the declarations, the data
                                         provide vitally important starting points which can be checked for
                                         internal consistency and form the basis for requests for more
                                         information if need be Their correctness and completeness may be
                                         checked through on site inspection by international inspectors Both
                                         in view of the general wish of states to minimize the presence of
                                         inspectors and of the cost of such visits, reliance on remote
                                         monitoring and automatic data transmission and on other means of
                                         verification not requiring on site inspection are of increasing
                                         importance
                                         (b)    Means of verification not requiring access to the state:
                                                 “national technical means of verification”
                                         78     The expression “national technical means of verification”
                                         signals means which are under the full control of a state and which
                                         do not require any cooperation from another state -most importantly
                                         the state on which this verification is focused. These means can
                                         consequently be used without consent, even against the will of
                                         another state. Important examples are satellite observation, seismic
                                         monitoring and analysis of samples of water or air. Literally
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<pre> Centenrilal of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                   Blix -26 -
                                            intelligence, covering, for instance, information obtained through
                                            clandestine means, interrogation of defectors and the systematic
                                           scanning of open sources etc. may not fit well under the expression
                                           “technical means”, but in practical terminology they do seem
                                            included.
                                                   1       satellites
                                           79      Observations through the use of satellites have helped
                                           enormously to give states confidence that commitments made about
                                           arms control and disarmament measures are respected. They were
                                           of particular importance in East-West relations before on site
                                           inspection was acceptable. While U 2 planes violated national air
                                           space (and, as experience showed, could be shot down),
                                           international law told us that the satellites circled the world at levels
                                           above and beyond national sovereignty. When mutual confidence
                                           became a desirable commodity between the superpowers, the merits
                                           of satellite surveillance became evident. Several agreements
                                           referred to in this report even lay down bans on any interference with
                                           satellite surveillance and concealment from such surveillance (see
                                           the CFE and INF agreements described above) Satellites go a long
                                           way to prevent surprises and they do t elegantiy and with increasing
                                           precision, but without intrusiveness on the ground and without
                                           complex negotiations
                                           80      Satellites remain an important tool to assure a good deal of
                                           transparency in the arms control and disarmament area A Soviet
                                           satellite discovered the South-African preparations for a nuclear test
                                           in the Kalahari desert in 1977 and US satellite pictures were of great
                                           value in 1991 to show the Board of Governors of the IAEA relevant
                                           nuclear installations in the DPRK. At that time a few members of the
                                           Board were reluctant to accept this type of evidence. However, as
                                           satellite imagery becomes ever more precise and revealing and as t
                                           becomes available from several states and even on a commercial
                                           basis, the reluctance is likely to give way. Nevertheless one should
                                           not be lulled into confidence that everything of interest to arms
                                           control and disarmament is detected. Satellites photograph only that
                                           on which their masters train the cameras. The Argentine enrichment
                                           plant at Pilcanyio was not seen before it was announced by the
                                           Argentine government and the large research reactor, which China
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<pre>Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                BIix-27-
                                          helped Algeria to build apparently was not spotted until several years
                                          into the construction. The Indian nuclear test preparations in the
                                         spring of 1998 were evidently sufficiently well concealed for satellites
                                          not to spot them (perhaps it should be added that none of the
                                         activities mentioned were in violation of any international
                                         agreement).
                                                 2       analysis of samples
                                         81      The analysis of samples provide a powerful means of deteCting
                                         the presence of various chemicals biological substances or
                                         radio-nuclides In order not to be 50 diluted that analysis becomes
                                         impossible, samples must in many cases be taken not too far away
                                         from where the source activity occurred In practice this means that
                                         they need to come from the territory of a state and there may need
                                         to be consent However in particular radio-nuclides are detectable
                                         even in very low concentrations allowing detection even far away
                                         from the source
                                         82      For the detection of nuclear explosions in the atmosphere the
                                         radio-active fallout spreading with the winds is of decisive
                                         importance for detection. Samples of fallout taken far beyond the
                                         borders of the state initiating of the explosion will provide strong
                                         evidence of the explosion We find that the complete test ban treaty
                                         (CTBT) relies on such samples (of air) as one method of verification
                                         83      For the detection of other nuclear activities e g enrichment of
                                         uranium or reprocessing of spent nuclear fuel samples of water or
                                         air, soil or biota are becoming of great importance but in most cases
                                         they must still be taken within the territory where the source activity
                                         occurred Environmental sampling has been high on the verification
                                         agenda and has developed fast as a technique ever since the
                                         international community began to engage itself in mapping Iraq’s
                                         program to produce nuclear, chemical and biological weapons. The
                                         first evidence of the lraqi efforts to enrich uranium was obtained in
                                         1990 when analysis was made of tiny particles stuck on the clothes
                                         of hostages who had been kept at the nuclear research center
                                         Tuwaitha and who were released by lraq. Since then samples of
                                         water have been taken routinely in the waterways of lraq by the
                                         IAEA under its Security Council mandate to monitor that no
                                         unauthorized nuclear activity has been undertaken.
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<pre>Centennial of the First International Peace Conference                                                              PREL1M1NARY REPORT
Armament Questions                                                                                                                 BIix-28-
                                         84      It should also be noted that the Additional Protocol adopted by
                                         the IAEA in 1997 to strengthen the safeguards verification regime
                                          (IAEA INFCIRC 540) introduces environmental sampling as an
                                          important tool. But here, as in lraq, we are mostly concerned with
                                         samples taken within the territory of the state and with its consent.
                                          Even so these techniques may offer the great advantage that
                                         evidence (of compliance or non-compliance) can be obtained without
                                         a need for inspectors to have access to technologically sensitive
                                         parts of nuclear installations. The lower level of intrusiveness of
                                         environmental sampling is a great asset Yet states which have had
                                         or still have nuclear weapon activities might turn out to be reluctant
                                         to give their consent to some such sampling as t may give
                                         substantial information not only about the situation at the time of the
                                         sampling, but also about activities which took place long ago
                                          Indeed t might be difficult to see from an analysis whether a nuclear
                                         activity which left traces was recent or from far back
                                                 3        seismic monitoring
                                         85      For nuclear explosions underground the seismic effects will be
                                         detectable far away from the site of the explosion and thus
                                         constitute evidence available without consent of the state The CTBT
                                         relies on seismic monitoring as one of the main methods of
                                         verification and a large system of stations for such monitonng is
                                         established under the treaty While the development of the seismic
                                         techniques for the detection of nuclear underground explosions has
                                         helped to bring acceptance of the CTBT -and at the same time
                                         advance seismic sciences- It is perhaps not likely that these
                                         techniques will be of use in any other arms control or disarmament
                                         context.
                                                 4        intelilgence
                                         86      Intelligence is a broad term. Espionage, i.e. the compilation of
                                         information through illicit means, is only part of the concept. As
                                         noted above intelligence may also comprise information through the
                                         interrogation of defectors, the monitoring of radio communications,
                                         the scanning of publicly available documents and prints -all of which
                                         is legal.
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<pre>Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix -29 -
                                         87      It was one of the conciusions of the IAEA after the discovery of
                                         the Iraqi illicit enrichment program that a systematic and continuous
                                         scanning of media could have given clues that lraq was
                                         endeavouring to enrich uranium and could have prompted questions
                                         to lraq. Such scanning was thereafter undertaken as a permanent
                                         feature of the safeguards system. This step met general support
                                         among member states and a scheme under which supplier states
                                         and importing states report to the Agency about their exports and
                                         imports of nuclear relevant equipment and material was also
                                         endorsed to strengthen the Agencys information base.
                                         88     As might be expected, it is a more sensitive matter for
                                         international verification to make use of information which might
                                         have been obtained through clandestine means. The issue is not
                                         addressed directly in treaty texts. From reading these texts one
                                         might get the impression that such information was not relevant.
                                         89     In the bilateral US-USSR treaty of 1987 on the elimination of
                                         intermediate-range and shorter-range missiles (the INF-treaty) Art.
                                         XIl:1 provides that “each party shall use national technical means of
                                         verification at its disposal in a manner consistent with generally
                                         recognized principles of international law”. It reinforces this rule by
                                         laying down in subparagraph 2 of the same article that neither Party
                                         shali “interfere with national technical means of verification of the
                                         other Party operating in accordance with paragraph 1 of this Article”
                                         In plainer language this should mean that information obtained
                                         through satellite observation and photography is recognized as
                                         relevant and permissible and must not be impeded The same
                                         would evidently not go for information obtained through clandestine
                                         means which are not “consistent with generally recognized principles
                                         of international law” And a party is free to interfere against such
                                         information gathering.
                                         90     The more recent multilateral ComprehensiveTest Ban Treaty
                                         (CTBT) similarly allows a party to base a request for an on site
                                         inspection “on any relevant technical information obtained by
                                         national technical means of verification in a manner consistent with
                                         generally recognized principles of international law” (para.37).
                                         91     Under the Chemical Weapons Convention of 1993 (CWC) a
                                         group of experts may be established to clarify a situation which may
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<pre>Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 30
                                                                                                                                      -    -
                                         give rise to concern and such group is authorized in Art. IX:4:e to
                                         examine “all available information and data relevant to the situation
                                         causing the concern”. This provision seems more open-ended.
                                         92      In the IAEA the issue had never had any relevance before the
                                         Agency was mandated by the Security Council in Res. 687 of 1991
                                         to perform immediate on site inspectiors “based on lraq’s
                                         declaations and the designation of any additional locations by the
                                         Special Commission” (UNSCOM) Although not articulated the idea
                                         was that intelligence organizations inFmember states should interface
                                         with UNSCOM and assist it by information which would help t to
                                         identify locations deserving inspection It was the Commissioris task
                                         to assess such information and decide whether it would designate a
                                         particular location for on site inspection by the IAEA The Agency
                                         was thus not contemplated as a direct recipient of intelligence In
                                         practice direct briefings to the Agency often suppiemented the
                                         designations made by UNSCOM.
                                                                                                                        )
                                         93     There is no doubt that intelligence -in the broadest sense- has
                                         been of great importance to help both UNSCOM and the IAEA in
                                         their difficult task of fully mapping lraqs clandestine program for
                                         weapons of mass destruction This experience raised the question
                                         to what extent if any, a verifying organization would be justified in
                                         other cases to receive and make use of information coming from
                                         national intelligence The question is not entirely academic It is
                                         obvious that there will be significant restraints in the provision of
                                    s%4 intelligence by governments to verifying organizations, like the
                                         secretariats of the IAEA the CWC and the CTBT While satellite
                                         imagery rnight not be so difficult to share, information requiring the
                                         protection of sources might be hard to share with an organization
                                         which, as a matter of principle recruits t international staff broadly
                                         However, there are also some factors prompting offers of
                                         information. 1f hard and significant information were to exist in a
                                         national intelligence organization regarding a possible breach of a
                                         weapons commitment, and the responsible verification organization
                                         were not somehow to be alerted, it would be difficult later to blame it
                                         for not being aware of what was going on.
                                         94      No explicit guidance has been given to the IAEA Secretariat in
                                         these matters. That the Agency itself never engages in any
                                         clandestine information gathering goes without saying and there is
                                         scant guidance in government sponsored instruments. The 1995
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<pre>Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 31
                                                                                                                                      -    -
                                          NPT Review and Extension Conference expressed as one of its
                                         conciusions that
                                                “States parties that have concerns concerning non-compliance
                                                      should direct such concerns, along with supporting
                                                evidence and information, to the IAEA to consider, investigate,
                                                draw conciusions and decide on necessary action in
                                                accordance with its mandate”.
                                         95     No restriction appears to have been set on what kind of
                                         information could be submitted to the Agency Indeed it would
                                         hardly be feasible to prevent a state -or, for that matter even a
                                         private individual say a defector- from offering information to an
                                         international organization charged with the task of verification It the
                                         organization routinely scans media how could it reject information
                                         offered through other channels 2 Yet t would appear that receiving
                                         intelligence -in the broadest sense- offered as a contribution to
                                         treaty-regulated verification by an international organization -rather
                                         than as a contribution to the specific Security Council mandated
                                         inspection and monitoring in lraq- would need to follow some strict
                                         ground rules if It is to avoid objections from member states
                                         96     First, while the verifying organization mightreceive information
                                         from anyone it should never use any but its own observations and
                                         data for conclusions There is enough desinformation circulating to
                                         necessitate a critical analysis and assessment of all information
                                         volunteered and desist from any conciusions based on data which
                                         the organization cannot independently verify This is not to say that
                                         information proffered could not be of use For instance although not
                                         a basis for conclusions, t might help the verifying organization to
                                         look for relevant data or sites
                                         97     Second, the flow of information must beone way, Le. the
                                         organization might receive but cannot give anything back. An
                                         organization performing verification may acquire a great deal of
                                         confidential information and data from states accepting its
                                         verification. This confidentiality must continue to be scrupulously
                                         res pected.
                                         98      Third, it would be desirable that intelligence -like information
                                         obtained through satellite observation- be received from several
                                         countries, so that the input is balanced.
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 32
                                                                                                                                       -   -
                                          (c)    Means of verification requiring access
                                                 1        On site routine inspection
                                          99     Although a number of bilateral US-USSR arms control
                                          agreements provide for bilateral verification and bilateral on site
                                          inspection, the focus here will be on the multilateral agreements
                                          relying on an international organization for inspection. In a less
                                          bipolarized world, verification of arms control agreements is likely
                                          increasingly to be a common international or regional task. As was
                                          noted above the Comprehensive Test Ban Treaty was made for
                                          universal adherence although for its effectiveness It would only have
                                          required acceptance by eight states which were not otherwise
                                          (through the NPT) obliged not to test. Similarly a cut-off agreement
                                          prohibiting the production of highly enriched uranium and plutonium
                                          for weapons purposes could in theory be effective if It were made
                                          between the same eight states, but it is generally assumed that it will
                                          be made for adherence by all states, including those which are
                                          already bound under the NPT by a similar rule.
                                          100    The safeguards system of the IAEA was the first
                                          institutionalized on site verification and inspection system that
                                          evolved. From the begifining of the 196as it has developed in littie
                                          more than 35 years from a tiny activity into a large professional
                                          operation engaging some 600 staff and costing some 100 million
                                          dollars per year At the end of 1997 there were 931 nuclear facilities
                                          and other locations which contained nuclear material and were
                                          subject to safeguards and during 1997 a total of 2499 inspections
                                          were carried out, requiring 10 240 person-days of inspection effort.
                                          101    In the beginning the safeguards system, especially the on site
                                          inspection, met considerable resistance and skepticism. There was
                                          concern in some quarters that technical and commercial secrets in
                                          ifiSpected nofi-nuclear weapon states might be divulged by
                                          inspectors and that these states’ nuclear ifidustries would be at a
                                          disadvantage compared to their competitors in nuclear weapon
                                          states which were not obliged to accept inspection. This is not the
                                          place to go into detailed technical descriptions of facility specific
                                          safeguards verification (under IAEA INFCIRC. 66) and
                                          comprehensive safeguards verification created to respofid to the
                                          requirements under the NPT and covering all present and future
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 33
                                                                                                                                       -    -
                                          nuclearactivities of a country (under IAEA INFCIRC. 153) and the
                                          strengthened safeguards verification (under IAEA INFCIRC 540),
                                          which it was deemed necessary to introduce after the failure of the
                                          old system to detect lraq’ s program for the enrichment of uranium.
                                          However,some features have more general interest and deserve
                                          description, comments and comparisons with similar features under
                                         the CWC and the CTBT.
                                                                     rjli
                                          102    A first comment is that nuclear industr/s skepticism to
                                          inspection has largely subsided No complaints have ever been
                                          heard about revelations of industrial or commercial secrets and the
                                          cooperation between industry and the inspectorate is mostly
                                          excellent Yet the experience of strengthening th traditional
                                          NPT-type safeguards verification (under IAEA INFCIRC 66 and 153)
                                          with a new additional protocol demonstrated that there was still
                                          reluctance among many governments to grant but the most evidently
                                          needed prerogatives and conveniences the inspecting organization
                                          To take but one example while the long negotiated CWC stipulates
                                          that visa shall be given to chemical inspectors for at least two years,
                                          the same provision to strengthen the independence of nuclear
                                          inspectors and to facilitate unannounced visit by them, was not
                                          accepted.j One year was the best that could be had.                                 /
                                          103 A second comment relates to the orientation of the verification
                                          system Earlier as now the system is based in the first place on
                                        accountancy (dectarations) of nuclear material under the jurisdiction
                                          of the inspected party The accounts are checked for consistency
                                          and -through on site inspecQn- for reflecting the reality Although a
                                          highly professional system, it has been criticized for being somewhat
                                          mechanistic too much concerned with quantitative assessments and
                                          too little with qualitativejudgments At the root of this criticism there
                                          lies a feeling among some that one should not have to devote so
                                          much effort to verify the numerous nuclear installations of advanced
                                          democratically organized states where it would be unlikely that any
                                          clandestine program would and could be hidden, but rather
                                          concentrate efforts on specific states with littie or no democratic
                                          control and with possible motivation to acquire nuclear weapons.
                                          104    This is obviously an important question of approach, which
                                          may have a more general bearing in the field of verification. It is true
                                          that the police in a big city may wisely put more efforts and
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<pre> Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 34
                                                                                                                                       -    -
                                           resources into crime ridden areas than in traditionally quiet
                                           neighbourhoods. However, an intergovernmental organization
                                           based on the principle of the sovereign equality of states cannot
                                          allow itself to assume that some members are lesser proliferation
                                          risks than others. It is more akin to airport controls which must treat
                                          all passengers in the same manner. It cannot act on trustvis-â-vis
                                          anyone.
                                          105    A third comment relates to the scope of access for inspectors
                                          Not entirely surprisingly governments will generally prefer that
                                          inspectors’ access be limited to specific locations of undeniable
                                          relevance while the inspecting organization will like to have as much
                                          freedom of movement as possible Under the system of inspection
                                          which was worked out for the verification of NPT obligations (IAEA
                                          INFCIRC 153) governments yet unaccustomed to inspection gave
                                          relatively limited on site access to the inspectors. During routine
                                          inspections in declared nuclear installations they were limited to
                                          visiting so called strategic points which were listed. Whatever
                                          arguments could be adduced for this arrangement it certainly
                                          signaled that inspectors could be kept in place.
                                          106    It is true that in very special circumstances the system did not
                                          preclude special inspections anywhere beyond declared facilities
                                          However, in the absence of a system of information which could
                                          point to non-declared installations which would merit such
                                          inspection, no special inspections of such installations were ever
                                          asked before the revelations of Iraq’s clandestine program
                                                 2        Special inspections (IAEA), challenge inspections (CWC)
                                                          and on site inspections (CTBT)
                                          107    At this point it might be of interest to examine some important
                                          differences between the IAEA’ right to special inspections (foreseen
                                          in paras. 73 and 77 of NPT-type safeguards agreement under
                                          INFCIRC. 153), the challenge inspections which can take place
                                          under the CWC (Art. IX, para 13 and ff.) and theon site inspections
                                          which can be requested under the CTBT.
                                          108    In the !AEA the Secretariat can request a special inspection
                                          when it considers that information made available by the inspected
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 35
                                                                                                                                       -   -
                                          state party, including explanations, is not adequate. 1f the state
                                          rejects the request, such rejection can be overruled by a simple
                                          majority of the Agency’ Board of Governors, deciding that it is
                                         essential and urgent to establish that nuclear material subject to
                                         safeguards is not diverted to nuclear weapons. Thus, a request for
                                         special inspection can only be made if the Secretariat believes on
                                         some reasonable grounds that some nuclear material or facility
                                         exists which should have been declared has not been so declared
                                          In the case of the Democratic Peoples Republic of Korea such a
                                          request was made by the Director-General in 1992 was upheld by
                                         the Board of Governors and rejected by the DPRK As a result the
                                          matter was referred to the Security Council.
                                          109     The IAEA model gives considerable power and responsibility to
                                         the Secretariat to assess the situation and to decide in a politically
                                         sensitive matter For the states involved this model might have the
                                          advantage that a Secretariat will try to take a matter of fact view and
                                          avoid politicization -if this is possible
                                          110     Under the Chemical Weapons Convention there is as in the
                                          IAEA, a permanent inspectorate which pays periodic visits to the
                                          relevant installations However here any state party may request
                                         the “technical secretariat” to undertake a challenge inspection to
                                          clarify any questions concerning possible non-compliance with the
                                          Convention Thus the CWC Secretariat cannot itself take the
                                          initiative to such inspection On the other hand a party requesting a
                                          challenge inspection will only need one third of the Council to
                                          support it This system takes the Secretariat out of the hot seat On
                                         the other hand t holds some risk for harassing challenge
                                          inspections
                                          lii     As noted above, unlike the IAEA Secretariat which verifies
                                          states’ compliance with safeguards agreements the CTBT
                                          Secretariat does not analyse the material obtained through the
                                          various monitoring methods employed with a view to discovering any
                                          anomalies to be followed up. Data are relayed to member states for
                                          analysis. 1f the states find data that need to be clarified, they can
                                          turn directly to the state on whose territory the relevant event
                                          appears to have taken place or to the Director-General of the
                                          CTBTO or to the Executive Council of the CTBTO. 1f states
                                          members are not satisfied with the clarifications obtained, they -but
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 36
                                                                                                                                      -    -
                                          not the Director-General- can ask for on site inspection. Thirty
                                         affirmative votes would be needed -out of 51 members of the
                                          Council- to bring about such an inspection. A request can be based
                                         on “national technical means of verification in a manner consistent
                                         with generally recognized principles of international law”, which
                                         would seem to make satellite observations acceptable, but not data
                                         obtained by clandestine means.
                                         (d)    Iraq as a watershed in the field of venfication
                                         112    The revelations in 1991 about Iraqs success in concealing its
                                         clandestine program for the enrichment of uranium and the
                                         development of a nuclear weapon became a watershed in the
                                         attitudes to safeguards verification It was realized that to have a
                                         verification system which had serious deficiencies might be more
                                         dangerous than having none because it might lulI neighbours and
                                         the world at large into a misplaced confidence All understood that
                                         the system, to be meaningful, would have to be given more teeth
                                         and modifications which until then would have been unacceptable
                                         became possible, not least as regards access in connexion with
                                         routine inspections The limitation of access to strategic points
                                         which had existed in routine inspection under the NPT feli away and
                                         several other expansions occurred in the right to access and the
                                         possibility to unannounced inspections.
                                         113    However, it has to be noted that even the rights of access
                                         under the strengthened IAEA safeguards look very modest when
                                         compared with the rights of access accorded UNSCOM and the
                                         IAEA to fulfil the mandate of inspection in lraq given to them by the
                                         Security Council. It might be of interest to see what a maximalist
                                         right of access can look like. In accordance with an exchange of
                                         letters of 14 May 1991 between the Secretary-General of the UN and
                                         the Iraqi Foreign Minister the inspectors working in lraq should have,
                                         for instance
                                         -      unrestricted freedom of entry and exit without delay or
                                                h md rance;
                                         -      unrestricted freedom of movement without advance notice
                                                within Irak...;
                                         -      right to unimpeded access to any site or facility for the purpose
                                                of on-site inspection...;
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<pre>Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 37
                                                                                                                                      -   -
                                         -      right to request, receive, examine and copy any record, data,
                                                or information...;
                                         -      right to install equipment or construct facilities or observation,
                                                inspection, testing or monitoring...;
                                         -      right to take photographs whether from the ground or from the
                                                air
                                         -      right to unrestricted communication by radio satellite
                                          114   Under the plan for future ongoing monitonng and verification in
                                         Iraq, approved by the Security Council in October 1991, the rights
                                         listed above were confirmed and some additional prerogatives were
                                         spelled out e g
                                         -      to stop and inspect vehicles, ships, aircraft or any other means
                                                of transportation within Iraq
                                         -      to inspect imports or exports of material and other items upon
                                                arrival or departure,
                                         -      to conduct interviews with any personnel at any site
                                          115   An inspection regime with such extensive rights of access to
                                         sites and to information is unprecedented and will hardly be
                                         accepted by any state unless It is under severe pressure. That
                                         seven years of inspection in Iraq employing this regime have not
                                         been enough to give confidence that the mapping of Iraq s program
                                         of weapons of mass destruction is “full, final and complete” point to
                                         a conclusion that has great importance for all verification of arms
                                         control and disarmament namely, that 100 per cent certainty is
                                         hardly ever attainable
                                         (e)     The residue of uncertainty in verification
                                          116   The difficulty to verify with full certainty that there is no fissile
                                         material, no chemical or biological substances which can be used in
                                         weapons, not a single antipersonnel mme on the territory of a state
                                         can perhaps be understood if the inspection and verification task is
                                         compared with the task of a national police to ensure that no narcotic
                                         drugs are stored clandestinely in a country. The police can move
                                         anywhere and has extensive -though not unlimited- rights of access.
                                          It may perhaps tap telephones, subpoena witnesses and it may have
                                         many informers. Yet, it would be a successful police, indeed, 1f It
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 38
                                                                                                                                      -    -
                                          could give absolute guarantees that there are no drugs in the
                                          country.
                                          117    In some respects the situation of the international weapons
                                          inspectors looking for undeclared material or installations is easier
                                         than that of the national police: Nuclear material is unique in leaving
                                         finger prints and a national weapons program for the enrichment of
                                          uranium or separation of plutonium will also call for rather large
                                          industrial installations which may be visible from satellites or
                                         detectable from information about exports
                                          118   Nevertheless the freedom of movement and prerogatives of
                                         international inspectors will in most respects be much more limited
                                         than those of the national police. Furthermore, a few kilograms of
                                         plutonium are not larger than a fist and the same is true of an
                                         antipersonnel mme while lethal chemicals or biological material can
                                         be stored in tiny containers There is no way international mnspection
                                         -or national police- could be sure to trace such small items hidden in
                                         a large country. Nor is there any way in which it could trace all
                                         documents computer programs matrixes, prototype machines or,
                                         for that matter, engineers and scientists that may be part of a
                                         weapons program 1f this is what governments request they cannot
                                         have t Inspectors cannot monitor every inch of the territory of a
                                         state and It is not meaningful to go in blind and random search.
                                          119   Although in public rhetoric governments may sometimes
                                         appear to be asking complete verification they know that this is not
                                         possible In normal verification under the NPT governments do not
                                         request that the ambition should be to detect very small quantities of
                                         fissile material and they are aware that there must remain some
                                         measure of uncertainty. Indeed, governments are accustomed to
                                         basing their decisions and policies on some degree of uncertainty.
                                         Reducing that uncertainty as much as possible without incurring too
                                         high verification costs or too high intrusiveness and accurately
                                         reporting on it is the normal job of the verifier. Deciding on how far
                                         they will rely on such reports in their policies and actions is the
                                         business of governments. What level of uncertainty is acceptable
                                         may be different in different situations and under different regimes,
                                         e.g. under the NPT generally and under the inspection scheme for
                                          lraq. Two examples may illustrate the point.
                                          120   After destroying its nuclear weapons and removing the fissile
                                         material, South Africa asked the IAEA to verify that there were no
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 39
                                                                                                                                      -    -
                                          more weapons and that all the fissile material was accounted for.
                                         South Africa went out of its way to facilitate the task of the Agencs
                                         inspectors and invited them to visit any place any time. The
                                         inspectors did a very thorough job. Yet, the conciusions of the
                                         Agency Secretariat which were accepted by the Board of Governors,
                                         reflect caution and a determination not give a greater assurance
                                         than strictly flowed from the inspections. justified. In a report (of 3
                                         September 1992) itis stated
                                                 “The team found no evidence that the inventory of nuclear
                                                 material included in the Initial Report was incomplete” (IAEA
                                                 doc. GOV/2609, para. 31).
                                         121    And in a report of 8 September 1993 the following language is
                                         used:
                                                 “The team found no indication to suggest that there remain any
                                                 sensitive components of the nuclear weapons programme
                                                which have not been either rendered useless or converted to
                                                 commercial non-nuclear applications or nuclear usage” (IAEA
                                                 doc GOV/2684 para 31)
                                         122     In the case of lraq, where the Agency had had unparalleled
                                         inspection rights and access to sites documents and persons had
                                         been working at full capacity for six years and had acquired a very
                                         extensive knowledge and understanding of the nuclear program but
                                         where there was hardly a genuine -and certainly not a consistent
                                         wish of the state authorities to fully cooperate the reports to the
                                         Security Council likewise show caution In a report of the IAEA of 6
                                         October 1997 to the Security Council it is stated (in para. 79) that
                                         there were “no indicat,ons”of significant discrepancies between the
                                         technically coherent picture that had evolved of lraq’s past nuclear
                                         programme and the information contained in lraq’s “Full, Final and
                                         Complete Declaration” (FFCD) of 7 September 1996 as
                                         supplemented since then. However, the report goes on to say:
                                                    .no absolute assurances can be given with regard to the
                                                 completeness of lraq’s FFCD. Some uncertainty is inevitable in
                                                 any country-wide technical verification process which aims to
                                                prove the absence of readily concealable objects or activities.
                                                 The extent to which such uncertainty is acceptable is a policy
                                                judgment” (U.N. Doc. S/1997/779 of 8 October 1997).
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix -40 -
                                          123    In an informal briefing of the Council on 16 October1997, the
                                          IAEA Director-General said in commenting upon the text quoted:
                                                 “...  when the Agency reports that It has foundno indication of
                                                 activities, facilities or items, this does not amount to an
                                                 assertion that there is none... The probability that “no
                                                 indication” corresponds to °non-existence” depends upon how
                                                 intrusive, extensive, systematic and skillful the investigation
                                                 was that gave such result Judging that probability is not a
                                                 technical matter Even less so deciding what level of
                                                probability is required”.
                                          124    In the case of Iraq the Security Council, too, will be aware that
                                         verification can never be 100 % but its assumption is that lraq will
                                         continue to conceal what It can and t will require a very high level of
                                         clarification. It should be kept in mmd, however, that while the case
                                         of inspections in lraq shows that it is possible to design verification
                                         systems that are extremely intrusive and fine meshed,
                                         considerations regarding acceptability to states in general regarding
                                         cost and the risk of irritating false alarms suggest some moderation
                                          in the devising of general systems Inevitably then the level of
                                         assurance of full compliance by the inspected states is less high
                                          (t)    “Managed access”
                                          125    An issue that appears more and more often in the context of
                                          international verification of arms control and disarmament
                                         agreements is that of sensitive information or installations which the
                                          inspected party has a legitimate interest in keeping confidential and
                                         which should not be fully viewed by inspectors e g to avoid any
                                          added risk of proliferation.
                                          126    As was noted above, under traditional NPT type verification the
                                          inspectors were limited to visiting strategic points in nuclear
                                          installations. The risk was then little that anything legitimately
                                          confidential would be revealed. Special arrangements had only to
                                          be made by the IAEA under the so-called hexapartite agreement
                                          regarding the inspection of enrichment plants, where access, notably
                                          to the cascade hall, by inspectors was subject to special
                                          arrangements to minimize the risk that proliferation sensitive
                                          information should leak. However, when under strengthened
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix -41 -
                                          safeguards the inspectors were to be given a much wider general
                                         freedom of movement in nuclear installations, a demand for special
                                          rules turned up and resulted inter alia in an article under which the
                                         Agency upon request by the inspected party would have to make
                                                 “arrangements for managed access under this Protocol in
                                                 order to pre vent the dissemination of proliferation sensitive
                                                 information, to meet safety or physical protection requirements,
                                                 or to protect propnetary or commercially sensitive
                                                 information “(IAEA INFCIRC 540 Art 7)
                                          127    In the Chemical Weapons Convention the Annex on
                                          Implementation and Verification (which preceded the IAEA provision
                                          quoted above) provides in Part X point 41 that the inspected party is
                                                 “under the obligation to aiow the grea test degree of access
                                                 taking account any constitutional obligations It may have with
                                                 regard to propnetary rights or searches and seizures, The
                                                 inspected State Party has the right undermanaged access to
                                                 take such measures as are necessary to protect national
                                                 security...
                                          128    Measures permitted under managed access inciude the
                                          removal of sensitive, papers the shrouding of sensitive equipment
                                          the logging off of computer systems restriction of sample analysis to
                                          the presence or absence of scheduled chemicals, random selective
                                         access to buildings and, only in exceptional cases, the granting of
                                         access only to individual inspectors to certain parts of the inspection
                                         site.
                                          129    The provisions of the Chemical Weapons Convention and of
                                          the new protocol for strengthened IAEA safeguards show that fairly
                                          significant restrictions in access can be demanded by the inspected
                                          states. Of course, such state may be restrained in any temptation to
                                          make use of available restrictions, lest an excessive demand appear
                                          unreasonable and draw suspicion.
                                          130    It may be of interest to note that curiously even in the case of
                                          inspections in Iraq under Security Council mandate some restraints
                                          are observed despite the seemingly unlimited authority given to
                                          UNSCOM and the IAEA (recorded above). In early 1998 a full crisis
                                          erupted over the access by UNSCOM inspectors to’presidential
                                          sites” and it was widely suspected in the world press that the cause
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 42
                                                                                                                                      -    -
                                          was that these sites were used to stock prohibited weapons of mass
                                          destruction. Eventually the crisis was defused by a visit of the
                                          Secretary-General of the United Nations, Kofi A. Annan. In the
                                          memorandum of understanding whiCh was drawn up at his visit the
                                          following paragraph (3) occurs:
                                                 FIThe Government of Iraq undertakes to accord UNSCOM and
                                                 !AEA immediate, unconditional and unrestricted access in
                                                 con formity with [relevant U N resolutions] In the performance
                                                 of îts mandate under the Secunty Council resolutions,
                                                 UNSCOM undertakes to respect the legitimate concerns of lraq
                                                 relating to national secunty, sovereinty and dignity”
                                                 (UND0c S/1998/l66of27February 1998)
                                          131    Special procedures were designed involving the presence of
                                          foreign diplomats at inspections by inspectors of presidential sites
                                          apparently to satisfy the demands raised by “sovereignty and
                                          dignity” When considering that premises and documents of police
                                          ministries, armed forces etc were by no means excluded from
                                          inspection under the concept of “sovereignty” the protocol gesture
                                          made to defuse the crisis seems to be a modest price paid. ,It is
                                          evident that the restraints as regards foreign presence that could be
                                          asked by lraq in 1998 on the basis of respect for the notion of
                                          “sovereignty” were min imal compared to the restraints that Turkey
                                          read into the notion of sovereignty in the 1 ‘ century
                                                                                                           ,
                                                                                                              z
                                                                                                                        /
                                          132    Regardless of any conceptual arguments that it might have
                                         invoked it is quite possible that Iraqi authorities would have
                                          prevented inspector access sufficiently long to enable themselves at
                                          some point where inspection was demanded to remove small items
                                          or documents whichould bring undesired revelations For larger
                                          items,on the other hand, such conduct would be more difficult.
                                          Their removal would be likely to be spotted by satellite surveillance.
                                          At hospitals and religious premises the two inspecting organizations,
                                          while certainly not waiving their rights of inspection, observed
                                          appropriate decorum.
                                          133 The above description of inspection problems which arose in
                                          Iraq should show that even when the inspecting organization is
                                          granted “unrestricted access”, some restraint in the exercise of the
                                          right may be needed and that a residue of uncertainty will inevitably
                                          remain as to whether everything has been disclosed.
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix -43 -
                111.3.                    Compliance
                                          134    It is often remarked that a fundamental difference between
                                          international and national law is that the latter but not the former is
                                          linked to means of enforcement ensuring compliance. While it is
                                          true that there is no international nuclear or other police and no
                                          courts that will automatically take jurisdiction in cases of violations of
                                          arms control or disarmament agreements and certainly no automatic
                                          sanctions the remark misses many essential points
                                          135    First rules of international like those of national law are
                                          complied with in most cases because the subjects have accepted
                                          the rules as being in their own interest and because they have a
                                          habit of good faith respect for treaty and other rules valid for them
                                          The peaceful settlement of disputes in accordance with agreed
                                          procedures avoids hardships and even bloodshed. The lowering of
                                          armament burdens under bilateral or multilateral agreenents
                                          releases resources for development. The accepted ban on chemical
                                          and biological weapons prevents some of the most feared horrors
                                          and sufferings of war, etc.
                                          136    Sometimes it is the mutual or general adherence to the same
                                          norm that provides the advantage sometimes the benefits gained by
                                          commitrrients may be different for different parties, there may be a
                                          direct quantitative quid pro quo as when two superpowers agree on
                                          specific but not identical steps of disarmament Non-nuclear
                                         !weapon states have sometimes maintained that their renunciation of
                                          nuclear weapons under the NPT should be a “sacrifice on their part
                                          and that the quid pro quo should be the commitment of the
                                              lear-weapon states to pursue negotiations toward disarmament
                                          Howevr, upon analysis it is hard to maintain that there is much of a
                                          “sacrific&. Indeed, there may be a significant advantage for an
                                          individual state that many other states -especially neighbours and
                                          other states in the region- renounce nuclear weapons. The
                                          commitment of nuclear weapon states, to be sure, may be perceived
                                          as another advantage gained, but it has hardly been the main
                                          motivation for any state adhering.
                                          137    Second, where a state which has bound itself by a rule of inter
                                          national law feels that some new development has modified the
                                          situation and gives it some interest in disregarding the commitment,
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<pre> Centennial of the First International Peace Conference                                                            PRELIMINARY REPORT
 Armament Questions                                                                                                                BIix-44-
                                          several considerations may restrain it from breaching its obligation.
                                           It may care for its own international reputation as a state respecting
                                           its commitments. It may be concerned about being singled out for
                                          condemnation. It may fear retaliation by neighbours, reactions by
                                          great powers or sanctions by the international community. In none
                                          of the cases would the reaction be as automatic and predictable as
                                          the reaction to violations of domestic law: states are mostly big and
                                          powerful subjects which although not immune to reactions from the
                                          outside, can not be thrown in jail and not easily be fined Even in the
                                          domestic sphere legal reaction to very powerful subjects e g trade
                                          unions waging illegal strikes or large religlous or political groups
                                          pursuing some “civil disobedience”, may problematic.
                                          138    When all this is said t must be squarely admitted that states
                                          breaking legal commitments often get away with it, especially if they
                                          are big and powerful and that precisely in the area of perceived
                                          national security interests may develop to disregard international
                                          obligations, the more so if forceful reactions appear unlikely. This
                                          makes it all the more important to note the stronger leverages which
                                          are developing at the end of the 2clh century and which are available
                                          to induce states to respect international obligations to which they are
                                          subject. The fast accelerating integration and organization of states
                                          into an international community makes states much more dependent
                                          on each other, e.g. in the area of trade, finance and development
                                          assistance
                                          (a)    What degree of uncertainty about cornpliance is tolerated                           2
                                          139    Before some of the traditonal and new means designed to
                                          induce compliance will be discussed, we must return to verification
                                          as fundamentally important to establish whetherthere is ons not
                                          compilance. We have seen how in some cases -the use of chemical
                                          weapons or dum-dum bullets- violations may be evident. Permanent
                                          verification procedures were not deemed necessary. However, for
                                          most rules in the field of arms control and disarmament technically
                                          advanced national or international means of verifying implementation
                                          are now needed. This report has described many of them in some
                                          detail. It has also shown that despite ever more developed means of
                                          verification there is normally and inevitably a residue of uncertainty
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<pre>Centennial of the First international Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix -45 -
                                         about full compliance. It must be asked how do governments act in
                                          the face of this uncertainty?
                                          140    It has been suggested above that the degree of uncertainty
                                         about full treaty implementation which governments may find
                                         acceptable may vary, depending upon the importance of the rule to
                                          be respected and upon the country whose compliance is in question.
                                          Pragmatism rather than equal application of legal norms prevails In
                                         the case of Iraq the tolerance of uncertainty about compliance with
                                         stiff obligations is very low in several governments as they are
                                         convinced that Iraq will avoid to comply if It can and would be ready
                                         to use any undetected weapons of mass destruction. By Contrast,
                                         as shown, an inevitable measure of uncertainty seems to be
                                         accepted with equanimity in the case of South Africa, as its
                                         government has much credibility and is not seen as having any
                                          motivation for a clandestine retention of nuclear weapons
                                          141   The inevitable residue of uncertainty in verification about
                                          compliance raises some other intriguing questions, which may be
                                          noted.
                                          (b)    Compliance measures suppiemented by possible
                                                counter-proliferation?
                                          142    Some U S experts have taken the view that as the organized
                                          international systems of verification fail to give complete reassurance
                                          about the absence of nuclear or chemical or biological weapons the
                                          U S must itself keep a strong capacity to intervene by unspecified
                                          measures of “counter proliferation” (perhaps surgical attacks                  )
                                                                                                                         9
                                          against suspect cases of non-compliance and by hardware like anti
                                          missile systems, to stop a violation, should one become evident.
                                         Although such doctrines seem to supplement rather than compete
                                         with international means of inducement and enforcement, one is
                                          nevertheless tempted to ask if they can give 100 % certainty about
                                          -enforced- compliance with bans on the possession and use of
                                          prohibited weapons -and what is their cost.
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix -46 -
                                          (c)    Verification of cornpliance with a cut-off agreernent
                                          143   Another interesting question as to how much uncertainty of
                                         compliance could be toterated in verification may surface in the
                                          negotiation of an agreement for the prohibition of production of
                                          highly enriched uranium and plutonium for weapons use -a cut-off
                                         agreernent Such agreement would call for the inspection of all
                                         enrichment and reprocessing plants in the states parties to verify
                                         that none of the fissile material produced is for weapons use An
                                         obligation of this kind exists already for non-nuclear weapon states
                                         parties to the NPT and is verified under NPT-type safeguards (for
                                         instance in Brazil and Japan). However, the chief purpose of a
                                         cut-off agreement would be to oblige the five declared
                                         nuclear-weapon states parties to the NPT and states not parties to
                                         the NPT, notably India, Pakistan and lsrael ifjoining the agreement
                                         to stop producing fissile material for weapons and subject their
                                         relevant plants to inspection and verification As inspection in such
                                         plants is labour intensive and costly the argument has been made
                                         that t could be performed at lower intensity -and with less cost- in
                                         states which have nuclear weapons, as in these cases a higher
                                         residue of uncertainty about full implementation could be tolerated
                                         than in non-nuclear-weapon states After all these countries already
                                         have stocks of nuclear weapons and of fissile weapons-useable
                                         material and t would not affect security much if inspection and
                                         verification failed to identify all. It would only be a quantitative
                                         problem By contrast in a non-nuclear state a verification failure to
                                         identify a quantity of plutonium could be used by the state
                                         clandestinely to make a first nuclear weapon and thus ach ieve a
                                         qualitative change -to become a nuclear-weapon state Against
                                         these arguments there is a fundamental argument about equality
                                         How could it be justified that the same type of nuclear installation be
                                         verified for the same purpose at different levels of intensity in two
                                         different countries, say Japan and China? Equality -but not cost
                                         speaks against the proposition.
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 BIix-47-
                                          (d)    Compilance with a total ban on the possession of nuclear
                                                 weapons
                                          144    1f nuclear-weapon states can never be 100 % certain through
                                         verification that other nuclear-weapon states are complying with their
                                         obligation to eliminate all their nuclear weapons how could they take
                                         the risk of standing “naked” 2 This is a question regarding
                                         verification which will inevitably turn up in the coming discussions
                                         about the complete elimination of nuclear weapons As this
                                         development is not imminent there will be time to ponder the issue
                                         Perhaps nuclear weapons are not the only possible deterrence
                                         against nuclear weapons. Perhaps also a gradual increase in the
                                         transparency of states and development of an improved global
                                         security system will impact on the issue 2 The Report of the
                                         Canberra Commission on the Elimination of Nuclear Weapons
                                         (August 1996) provides both valuable insights and valuable ideas on
                                         the issue.
                                         (e)    Means of inducing cornpliance
                                                 1        Verification and detection as means of deterring
                                                          non-cornpliance
                                         145    The standard safeguards agreements of the IAEA for the
                                         implementation of the NPT (INFCIRC 153, Corr) provides that the
                                         objective of safeguards is
                                                “the tirnely detection of diversion of significant quantities of
                                                nuclear matenal from peaceful nuclear activities to the
                                                rnanufacture of nuclear weapons or of other nuclear explosive
                                                devices or for purposes unknown, and deterrance of such
                                                diversion by the nsk of early detection “(Para 28)
                                         146    The thought articulated in the agreement -to be accepted by
                                         the state- is clearly that a risk of early detection of any diversion of
                                         nuclear material will deter the state from attempting such diversion.
                                         Being found out as cheating would certainly be discrediting and
                                         damaging to a state’s standing and would, moreover, very likely set
                                         in motion political, economic or even military pressuresby other
                                         states.
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<pre>Centennial of the First International Peace Conference                                                              PRELIMINARY REPORT
Armament Questions                                                                                                                 Blix 48
                                                                                                                                       -   -
                                          147    In this context it might be noted that the nuclear test explosions
                                          carried out by India and Pakistan in the spring of 1998, without being
                                         violations of any legal commitment assumed by either country (as
                                         they had refused to join existing test bans), led to strong reactions by
                                          many states, including the cutUng off of development aid, credit
                                         guarantees and support for loans in the World Bank. Here even
                                         conduct perceived by many states as defiance of an incipient rule of
                                         the global community provoked strong reactions. Looked at from
                                          another angle one might feel that India’s and Pakistans non
                                          adherence to the rule was also an indication that the rule was taken
                                         seriously.
                                                 2        Break-down of treaty relation likely res uit of
                                                          non-compliance
                                          148    Artide 60 of the 1969 Vienna Convention on the Law of
                                         Treaties provides that
                                                 “A material breach of a bilateral treaty by ore o,f the parties
                                                 entitles the other to invoke the breach as a ground for)
                                                 terminating the traty or suspending its operation in whole or in
                                                 part”(subpara. 1).                                                    -)     /
                                          149    A party to a bilateral arms control or disarmament treaty will be
                                                     —                                                    1.
                                          aware that if it ceases to comply with its commitments, the other
                                          party is likely to declare itself free of any further obligation. This may
                                    4ct as a deterrent against breaches. The term “material breach” is
                                         defined by the Convention a                   repudiation of the treaty or “the
                                          violation of a pro vision essn ial to the accomplishment of the object
                                          orpurpose of the treaty” Evidently a party to a treaty may choose to
                                          overlook minor departures from treaty obligations. However, as a
                                          party contemplating a breach is unlikely to know what will be
                                          tolerated by way of non-compliance, this uncertainty, too, might act
                                          as a deterrence against any non-compliance.
                                          150    For multilateral treaties, the legal effects of a non-compliance
                                          by one party are more complicated (Subpara. 2), but they also allow
                                          suspension or termination by joint action of the other parties or even
                                          in several situations by another party specially affected by the
                                          breach. Thus under these provisions, too, a party tempted to breach
                                          an arms control or disarmament agreement would have to count on
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<pre>Centennial of the First International Peace Conference                                                             PRELIMINARY REPORT
Arniament Questions                                                                                                               Blix -49 -
                                         other parties freeing themselves of their obligations and taking
                                         whatever steps they consider appropriate and legal.
                                                 3       Non-cornpilance giving other treaty part/es a right to
                                                         w/thdra w
                                          151    Several arms control and disarmament treaties discussed in
                                         this report contain a clause along the following lines
                                                “Each Party shali in exercising its national sovereignty have the
                                                 right to withdraw from the Treaty 1f it decides that extraordinary
                                                events related to the subject matter of this Treaty, have
                                                jeopardized the suprerne interests of its country “(Art IV of
                                                the Partial Test Ban Treaty of 1963)
                                         152    Similar clauses are found, for instance, in the art. X:1 of the
                                         1968 Non-Proliferation Treaty art XIX of the 1990 Treaty on
                                         Conventiorial Armed Forces in Europe (CFE) of 1990 and in art XV
                                         of the US-USSR 1987 Treaty on the elimination of their intermediate
                                         range and shorter-range missiles (INF) The right retained in this
                                         type of clause is evidently broader than just covering a clear-cut
                                         breach of the treaties by other parties It would enable a party to
                                         free itself from further obligations also in circumstances where the
                                         occurrence of a breach appears highly probable but may be difficult
                                         to prove, perhaps due to inconclusive verification This type of
                                         article may serve as warning to a state contemplating
                                         non-compliance that even fit would be able to make t difficult to
                                         pro ve non-compliance it might trigger an undesired withdrawal by
                                         another party On the other hand the article may also show another
                                         function of effective verification namely that such verification may
                                         help states which have cornplied to argue against unjustified
                                         atternpts of withdra waL
                                         153    A number of other agreements in the arms control field fail to
                                         contain the common withdrawal clause cited above, e.g. the 1972
                                         Convention on the prohibition of the development, production and
                                         stockpiling of biological weapons. It must be concluded that the
                                         omission is deliberate and that the parties have not wanted to
                                         facilitate withdrawal in cases of suspected breaches. Nevertheless,
                                         the residuary rule of the Vienna Convention on the law of Treaties
                                         do apply.
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<pre>Centennial of the First international Peace Conference                                                             PREL1M1NARY REPORT
Armament Questions                                                                                                                BIix-50-
                                                4        Risk of retallation as a means of inducing compilance
                                          154   The tit for tat, tooth for tooth and eye for eye may be seen as a
                                         Concept of revenge but just as well as a means of deterrent
                                         operating in a primitive community, where collective sanctions are
                                         unreliable or yet underdeveloped. In the international community it
                                         has played and will continue to play a significant role until the state
                                         community is better equipped authoritatively and impartially to
                                         establish cases of non-compliance with obligations and decide and
                                         perform reactions to such cases Clearly the 1899 bans on the use
                                         of the dum-dum bullet and the bans on asphyxiating and deleterious
                                         gases were sanctioned by the risk of retaliation and it is generally
                                         believed that the general compliance with the 1925 Geneva ban on
                                         B and C weapons and non-use of poisonous gas during the Second
                                         World War was due in large part to the fear of retaliation in kind It is
                                         evident that although no prohibition of use has been agreed to
                                         concerning nuclear weapons the risk of retaliation in kind has
                                         provided significant inducement for non-use.
                                                5        Risk of collective sanctions as a means of inducing
                                                         cornpilance
                                         155    Arms control and disarmament treaties very often contain
                                         provisions about consultation between parties and measures of
                                         clarification in cases of suspected breaches. As we have seen the
                                         right of termination or withdrawal may also exist implicitly or explicitly
                                         The right of retaliation for breaches is never explicitly stated and at
                                         least in one case narnely a use of bacteriological weapons, it
                                         appears to have been ruled out
                                         156    The 1993 Convention on Chemical Weapons (CWC) contains
                                         some provisions on compliance (Art. XII), to the effect inter alia that
                                         the Conference of State Parties may restrict or suspend a statës
                                         rights and privileges until it returns from breach to compliance. It
                                         may also recornrnend state parties to take collective measures and
                                         in cases of particular gravity it is -as noted above- to bring the issue,
                                         relevant information and its own conclusions to the attention of the
                                         General Assembly and Security Council of the U.N.
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<pre>Centennial of the First International Peace Conference                                                              PREL1M1NARY REPORT
Armament Questions                                                                                                                 Blix 51
                                                                                                                                       -   -
                                          157   The Statute of the IAEA, which entered into force in 1957,
                                          likewise contains some sanction provisions. Under Art. XIX:B a
                                          member which has “persistently violated” the provisions of the
                                         statute or of any agreement entered into pursuant to the statute
                                          (notably a safeguards agreement) may be suspended from the
                                         exercise of the privileges and rights of membership...
                                          158    It is evident that although the IAEA has taken decisions to
                                         deprive both lraq and the DPRK of non-humanitarian technical
                                         assistance as a result of their non-compliance with safeguards
                                         agreements, neither the provisions of the IAEA nor those of the
                                         CWC form the basis for sanctions which bite The two
                                         organizations are watch-dogs of the organized international
                                         community and the systems authority to take effective measures to
                                         bring about compliance with arms control and disarmament
                                         agreements is vested in the United Nations Security Council Such
                                         measures -sanctions- can be taken only on the basis of Chapter VII
                                         of the U N Charter and require that the Council has determined the
                                         existence of a threat to the peace breach of the peace or act of
                                         agg ression
                                          159    It is not of course, certain that all cases of non-compliance
                                         with arms control and disarmament agreements constitute threats to
                                         the peace, nor is it by any means sure that all such cases will be
                                         brought before the Council It is nevertheless, a possibility in many
                                         cases and a statutorily required step in some cases (as for the IAEA
                                         under its relationship agreement with the U N )
                                          160   The Security Council, itself has made t known how seriously t
                                         views any proliferation of weapons of mass destruction In a
                                          Presidential Statement after the Security Council meeting at summit
                                         level in 1992 the following was said:
                                                “The proliferation of all weapons of mass destruction
                                                constitutes a threat to international peace and security. The
                                                members of the Council commit themselves to working to
                                                prevent the spread of technology related to the research for or
                                                production of such weapons and to take appropriate action to
                                                that end.
                                                “On nuclear proliferation, they note the importance of the
                                                decision of many countries to adhere to the Non-Proliferation
                                                Treaty and emphasize the integral role in the implementation of
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<pre>                                                                                                                                             \
Centennial of the First international Peace Conference                                                             PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 52
                                                                                                                                      -    -
                                                that Treaty of fully effective IAEA safeguards, as well as the
                                                 importance of effective export controls. The members of the
                                                 Council will take appropriate measures in the case of any
                                                violations notified to them by the IAEA.”.
                                          161   A remarkable feature of the above statement is that it seems to
                                          lay down that any proliferation of weapons of mass destruction
                                         would be an event allowing the Council to take action under Chapter
                                         However that may be the statement can hardly have been
                                         4
                                         Vll
                                         meant to obviate the need to determine in each concrete case
                                         whether there is “a threat to the peace” How will the Council act in
                                         such cases?
                                          162   The case of Iraq was brought to the Council as a case of dear
                                         cut aggression and led to a massive armed intervention under the
                                         authority of the Council. In the Council mandated inspections by the
                                          IAEA t was found that lraq had violated its obligations under the
                                          NPT and the safeguards agreement with the IAEA The Council has
                                         shown itself determined to ensure that all Iraqi weapons of mass
                                         destruction be eradicated has given strong support to UNSCOM and
                                         the IAEA in their work to this end and has looked to its members to
                                         take enforcement measures on behalf of the Council when needed
                                         to ensure Iraqi compliance.
                                          163    In the case of the Democratic PeopIes Republic of Korea
                                         (DPRK) which was brought to the Council by the IAEA, not as a case
                                         of breach of the NPT, but as a case of non-compliance with the safe
                                         guards agreement between the DPRK and the IAEA, the action of
                                         the Council was very different. It encouraged its members to take
                                         steps to defuse the situation and the U.S. reached what was termed
                                         an “agreed framework” under which the DPRK declared that it would
                                         “freeze” its existing nuclear programme and accept international
                                         verification on all existing plants and the United States would inter
                                         alia put together an international consortium to arrange financing for
                                         and the supply of two 1000 MW(e) light water reactors. When a
                                         significant portion of the light water reactor project was completed,
                                          but “before delivery of key nuclear components” the DPRK would
                                         “come into full compliance with its safeguards agreement...”.
                                          164   The ‘agreed framework’ reached between the U.S and the
                                          DPRK was endorsed by the Security Council and the Agency has
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<pre>Centennial of the First International Peace Conference                                                            PRELIMINARY REPORT
Armament Questions                                                                                                                Blix 53
                                                                                                                                      -   -
                                          been verifying the freeze as it was asked to do. Although no one
                                          has explicitly condoned the failure of the DPRK to comply fully with
                                          its safeguards agreement with the IAEA (and the General
                                          Conference of the IAEA has each year declared that the DPRK
                                          remains in non-compliance), it is evident that this degree of
                                          non-compliance is tolerated -presumably because any alternative
                                         course of action is deemed more problematic. One is driven to the
                                         conciusion that in its aim to avoid dangerous confrontation, perhaps
                                         inciuding armed force in a sensitive area of the world, the Security
                                         Council, inciuding its permanent members, has not attempted to
                                         uphold a legal regime butjudged It wiser to follow a pragmatic line.
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