International Network of Engineers and Scientists Against Proliferation

Rule of Power or Rule of Law?

US Compliance with Security-Related Treaties

Nicole Deller

The United States can be credited as one of the founders of the modern system of international law. It led the formation of the United Nations and played a key role in the drafting and development of international human rights instruments and institutions of international justice.

Nevertheless, many of the efforts to involve the United States in international legal systems were tempered by the Senate and other influential members of government who believed that US interests were better served without the encumbrances of international laws. International legal obligations were perceived as impinging on US sovereignty and restraining the country's ability to act in its own interest. That philosophy was manifested in the US refusal to join League of Nations, the precursor to the United Nations. It also helps to explain why the United States has not adopted or has made significant reservations to many human rights treaties.

Opposition to international engagement has fluctuated over the years, but increasingly, influential policymakers are resistant to the idea of formalized arrangements with other countries, particularly the treaty-based international legal system that governs global security. As a result, the United States has rejected or undermined treaties that were widely embraced by the international community and would work to enhance global security. These include the Anti-Ballistic Missile Treaty, the Comprehensive Test Ban Treaty, the Treaty to Ban Landmines, the International Criminal Court, a verification protocol for the Biological Weapons Convention, and the Kyoto Protocol. Moreover, the United States is not complying with obligations of several other significant global security treaties, namely the Chemical Weapons Convention, the UN Framework Convention on Climate Change, the Nuclear Nonproliferation Treaty, and possibly the Biological Weapons Convention.

In the current environment where groups of individuals are capable of wreaking the type of destruction once thought reserved for superpowers, global security cannot be addressed by agreements among states to merely reduce or abstain from using their weapons. Global security requires monitoring access to materials that could create mass destruction. A strengthened system to bring violators to justice is also required, a need that will be met in part by the International Criminal Court. Moreover, the view of international security must also consider how US actions threaten the security of the people of the United States and the world, especially because the United States sets a powerful example for other states and non-state groups.^[1] It is within this broader context that recent US behavior toward treaties must be examined.

Treaties Guarding against Weapons of Mass Destruction

The Nuclear Non-Proliferation Treaty (NPT) is crucial to global security because it bars the spread of nuclear weapons. The NPT strikes a bargain between non-nuclear weapon states, which are prohibited from acquiring nuclear weapons, and nuclear weapons states, which are committed to the goal of disarmament. Specifically, under Article VI, states parties agree to "pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control".

Article VI does not set forth what steps need to be taken to comply with the disarmament obligation, but the treaty has since been interpreted to include a variety of measures that should be undertaken by nuclear weapon states. These steps, first articulated when the NPT states parties agreed to the indefinite extension of the NPT and then in the 2000 NPT review conference, include enacting a comprehensive test ban treaty, applying the principle of irreversibility to nuclear weapons reductions, a diminishing role for nuclear weapons in security policies to facilitate the process of their elimination, and the engagement as soon as appropriate of all the nuclear weapon states in the process leading to the total elimination of their nuclear weapons.

Essentially, the United States now appears to have decided not to meet its nuclear disarmament obligations under the NPT, notably those that it undertook in the process of indefinite extension of the NPT in 1995 and in subsequent years. The US Senate rejected the Comprehensive Test Ban Treaty (CTBT) in 1999. With respect to irreversible reductions of warheads, as set forth in the US 2002 Nuclear Posture Review (NPR), reductions of deployed strategic arms will be reversible, not irreversible, because they will be accompanied by the maintenance of a large "responsive force" of warheads capable of being redeployed in days, weeks, or months. The Strategic Offensive Reductions Treaty signed on May 24, 2002, in Moscow ("Moscow Treaty") limiting deployed strategic warheads on each side to no more than 2200 by the year 2012 does not provide for destruction or dismantlement of reduced delivery systems and warheads and is therefore consistent with the plan for a "responsive force". There are no announced plans to employ dealerting measures to reduce the operational status of the large deployed strategic forces that will remain after reductions.

The NPR also fails to comply with the pledge of a diminishing role for nuclear weapons in security policies and the obligation to negotiate cessation of the arms race at an early date. It expands options for use of nuclear weapons against non-nuclear weapon states, including pre-emptive attacks against biological or chemical weapon capabilities and in response to "surprising military developments," and to this end provides for development of warheads including earth penetrators. Moreover, the NPR contains plans for the maintenance and modernization of nuclear warheads and missiles and bombers for the next half-century. The NPR and the Moscow Treaty are reflective of the fundamental violation of Article VI - the failure to make disarmament the driving force in national planning and policy with respect to nuclear weapons.

The Biological Weapons Convention (BWC) is also a potential tool to prevent the spread of weapons of mass destruction. The BWC, ratified by the United States in 1975, prohibits states parties from developing, acquiring or retaining biological agents or toxins where they have no justification for defensive or other peaceful purposes; and it also prohibits "weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict". But the treaty lacks verification measures, such as states' declarations of facilities and programs using these agents. Without these measures, the treaty has no teeth, it cannot detect violations or deter would-be violators, and it does little to help countries share information.

Over a seven-year period, states parties to the BWC negotiated a protocol to install a declaration and verification regime for monitoring states' use of biological agents. The United States rejected the draft protocol, and halted efforts to create any internationally binding agreement, arguing for voluntary measures instead. The resistance to legal measures to strengthen the BWC seems inconsistent for a country that was the target of an anthrax attack less than a year ago.

Meanwhile, US biodefense programs may have exceeded the limit of activity permitted under the Convention. As part of its biodefense program, the United States secretly constructed a model bio-bomb and weaponized anthrax. These activities may be seen as violating the BWC because, although their stated purpose is defensive, the BWC does not permit the production of weapons. These and other biodefense activities have been carried out in secret, and so US treaty partners have not been able to assess its compliance. It is detrimental to the BWC for the United States to keep its own activities in the dark while simultaneously attempting to verify that other states are complying with the BWC.

Another treaty safeguarding against weapons of mass destruction is the Chemical Weapons Convention (CWC). The CWC, ratified by the United States in 1997, bans the development, acquisition, transfer, or use of chemical weapons, and obligates states parties to declare relevant chemicals and production facilities. These declared chemicals and facilities are subject to routine inspections, and states may also request a challenge inspection of another state party's facility if they suspect non-compliance.

In legislation to implement the treaty, the United States imposed restrictions on several treaty terms relating to inspections. These include restricting extensive sampling and conferring on the President the right to refuse inspections on the grounds of national security. The CWC does not permit these limitations, and already contains thorough safeguards for the protection of confidential information. These limitations may prevent accurate inspection results. Moreover, other countries, for example India and Russia, have begun to impose similar limitations on their inspections.

Climate Change - the Emerging Security Threat

Scientific evidence about global climate change now overwhelmingly supports the belief that rapidly occurring climate change is in large part due to anthropogenic emissions of greenhouse gases, with carbon dioxide being responsible for about fifty percent of the total emissions. The Bush administration recently reported to the United Nations that the burning of fossil fuels is primarily responsible for recent global warming and notes that substantial environmental changes are very likely to occur in the coming decades.^[2] Drastic climate change may have significant ramifications on global security, for instance, millions or even tens of millions of people could become refugees because of flooding or changing food production patterns, thus the need to reduce emissions is all the more urgent.

As a party to the UN Framework Convention on Climate Change (UNFCCC), the United States is obligated to take "precautionary measures to anticipate, prevent, or minimize the causes of climate change". The 1997 Kyoto Protocol, which arose out of the UNFCCC, set binding greenhouse gas emissions targets for developed countries, which have higher per person emissions and are therefore obligated under the UNFCCC to take action first. The United States, which is responsible for roughly one quarter of global greenhouse gas emissions, signed the Kyoto Protocol, but refuses to ratify it, largely because of the separate treatment for developed and developing countries. Most other countries that were required to limit emissions by the Kyoto Protocol have agreed to move forward with emissions limits without the United States.

Regardless of whether the United States joins the Kyoto Protocol, the obligation under the UNFCCC to take action to reduce climate change still exists, and is not being met. The Bush administration, in a recent UNFCCC report, conceded to the impact of climate change, yet the administration's policies focus more on the "challenge of adaptation"^[3] than on mitigation. The administration endorses largely voluntary measures, and the climate change plan in place is aimed only at reducing greenhouse gas "intensity" of the US economy. This plan would reduce emissions per unit of economic output, but the target for the reduction in intensity is so low that total emissions would still continue to grow. Thus, the United States not only undermined the success of the Kyoto Protocol, its policies also fail the basic obligations of the UNFCCC because they will result in continued substantial increases in emissions of greenhouse gases and aggravation of anthropogenic climate change.

The International Criminal Court

The Rome Statute establishing the International Criminal Court (ICC) entered into force on July 1, 2002. The ICC is the world's first permanent criminal court to try individuals for specified crimes committed in the territories of states parties or by the nationals of states parties. The crimes that currently fall under ICC jurisdiction are genocide, war crimes, and crimes against humanity.^[4] The ICC will bolster global security by deterring serious international crimes, and it does not permit immunity for heads of state or any other officials. A functioning ICC will also strongly reinforce the existing taboo against use of weapons of mass destruction.

Since drafting the Rome Statute began, the United States unsuccessfully sought to make the determination of which cases would be brought to the ICC subject to the UN Security Council. Subjecting the ICC to the Security Council would have allowed the United States and the other four veto-wielding permanent members to block their citizens and those of their allies from being brought before the ICC. The United States also protested that its nationals would be subjected to politically motivated prosecutions. The ICC addresses these concerns with many procedural safeguards. For example, Court approval is required for investigations to be taken up by the ICC Prosecutor. Also, the court will only have jurisdiction when states are unwilling or unable to prosecute.

President Clinton ultimately signed the Rome Statute, but simultaneously backtracked from his endorsement, citing "fundamental concerns". Recently, the Bush Administration gave notice that it does not intend to become a party to the treaty.^[5] The United States is now free to pursue methods to undermine the court, for example, by refusing to extradite suspects to the ICC, by pursuing agreements with other countries to prohibit extradition of US nationals to the ICC, and by conditioning military or financial support to states on non-participation in the ICC.

Most visibly, the United States has made various attempts to acquire immunity for US nationals for any UN peacekeeping operations. Instead of working within this newest form of international law to help detect and deter grave breaches of global security, the United States seeks to undermine its work. The main reason is because US nationals, like nationals of all other states, could be subject to the ICC's jurisdiction.

Treaties and Global Security

These actions reflect an increasing resistance to participation as an equal under the international rule of law; the United States is rejecting the traditional bargains necessary to reach cooperative agreements in favor of reliance on military defenses. Senator John Kyl, for example, argued that "a more successful and realistic strategic posture for the United States would rely less on the goodwill of bad actors than what we ourselves can control - our own defenses".^[6] This argument might have merit if most countries were habitual violators of their security treaty commitments, yet most countries do obey international law. And while there are violations, legal regimes are not abandoned because some actors do not comply.

One influential member of the Bush Administration, John Bolton, Under Secretary of State for Arms Control and International Security, has expressed his belief that international law is not really law: "There may be good and sufficient reasons to abide by the provisions of a treaty, and in most cases one would expect to do so because of the mutuality of benefits that treaties provide, but not because the United States is 'legally' obligated to do so".^[7] This desire to marginalize treaties is rooted in fear that they infringe on US sovereignty and national security interests. Also, critics such as Bolton do not have confidence that treaties contain adequate mechanisms to enforce compliance by all parties.

With respect to the concern that treaties unnecessarily restrain US actions, including threatening sovereignty, this argument ignores the benefits that international law, like domestic law, provides. Government is instituted among individuals to provide a means to restrain any one person or group of persons from trampling on the rights of others, and in the case of such transgression, to secure redress. In return, in a democracy, people willingly give up certain freedom of action. The balance between freedom of action and restraint is struck to increase common security. These principles of security and cooperation as governed by law apply on a global plane as they do within individual countries.

The question of enforcement of treaties is a valid concern but it is by no means a justification for non-participation. Various enforcement mechanisms are in place to address non-compliance of treaty commitments. A range of sanctions is available, including withdrawal of privileges under treaty regimes, embargoes, travel bans, reductions in international financial assistance or loans, and freezing of state or individual leader assets. Sanctions can be applied by individual states, groups of states, states parties to treaty regimes acting collectively, or the Security Council. Issues of non-compliance may also be taken up by the UN Security Council or the International Court of Justice.

While mechanisms to enforce treaty compliance do exist, they need to be strengthened. But in many cases, the United States and others are undermining enforcement mechanisms. The refusal to join the ICC is one example. Also, enforcement requires monitoring and detection, which in many cases means the establishment of verification and transparency arrangements. Yet the United States has attempted to exempt itself from transparency and verification arrangements in the case of the CWC. It has rejected a treaty that has strong verification provisions, namely the Comprehensive Test Ban Treaty, and refused to agree to any inspection protocol in the case of the BWC. Other states are resistant to US demands for near perfect knowledge of their compliance when the US shields itself from similar scrutiny.

There is a final argument underlying the US opposition to treaties, and that is the implicit belief that the United States is an "honorable country" that does not need treaty limits to do the right thing. This view assumes that the US actions are intrinsically right, recalling the ideology of "Manifest Destiny," and allows the United States to exercise its power accordingly. This is at odds with the very notion that the rule of law is possible in global affairs. If the rule of power rather than the rule of law becomes the norm, especially in the context of the present inequalities and injustices around the world, security is likely to be a casualty, along with freedom.

International security can best be achieved through coordinated local, national, regional, and global actions and cooperation. Treaties like all other tools in this toolbox are imperfect instruments. Like a national law, a treaty may be unjust or unwise, in whole or in part. If so, it can be amended. But without a framework of multilateral agreements, the alternative is for states to decide for themselves when action is warranted in their own interests, and to proceed to act unilaterally against others when they feel aggrieved. This is a recipe for the powerful to be police, prosecutor, judge, jury, and executioner all rolled into one. It is a path that cannot but lead to the arbitrary application and enforcement of law.

For the United States, a hallmark of whose history is its role as a progenitor of the rule of law, to embark on a path of disregard of its international legal obligations is to abandon the best that its history has to offer the world. To reject the system of treaty-based international law rather than build on its many strengths is not only unwise, it is extremely dangerous. It is critical that the United States join with other countries in making global treaties crucial instruments in meeting the security challenges of the 21st century.

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1. For instance, because drastic changes in climate pose vast security risks, global warming must be included as a new threat to global security.
2. Climate Action Report 2002. The United States of America's Third National Communication Under the United Nations Framework Convention on Climate Change, on the web at www.epa.gov/global-warming/publications/car/index.html.
3. Climate Action Report 2002, Chapter 6, p. 82.
4. Aggression will also be added as a crime once the states parties adopt a definition.
5. Under the laws of treaty making, signature of a treaty signifies an intent to ratify and carries an obligation not to engage in acts that would "defeat the object and purpose" of the treaty, until it makes its intention clear not to become a party to the treaty. Article 18, Vienna Convention on the Law of Treaties.
6. Why the Senate Rejected the CTBT and the Implication of Its Demise, remarks of Senator John Kyl, given at the Carnegie Endowment for International Peace, June 5, 2000.
7. John Bolton, Is There Really 'Law' in International Affairs, Transnational Law and Contemporary Problems, Vol. 10, Spring 2000.

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