THE LAW OF ARMS CONTROL pptx

THE
LAW
OF ARMS CONTROL
Developments
in
International
Law
VOLUME
41
GUIDO
DEN
DEKKER
THE
LAW
OF ARMS CONTROL
International Supervision and Enforcement
MARTINUS NIJHOFF
PUBLISHERS
THE
HAGUE
/
BOSTON
/
LONDON
A C.I.P. Catalogue record for this book is available from the Library of Congress
ISBN 90-41 1-1624-9
Published by Martinus Nijhoff Publishers,
P.O. Box 85889,2508 CN The Hague, The Netherlands.
Sold and distributed in North, Central and South America
by Kluwer Law International,

101 Phlip Drive, Norwell, MA 02061, U.S.A.
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All Rights Reserved
O
2001 Kluwer Law International
Kluwer Law International incorporates the publishing programmes of
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&
Trotman Ltd, Kluwer Law and Taxation Publishers,
and Martinus Nijhoff Publishers.
No part of the material protected by this copyright notice may be reproduced or
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Printed in the Netherlands.
Preface
This book is the result of a good four years of research, conducted at the
Department of International Law and International Relations of the
University of Amsterdam. At this point,
I
would like to take the opportunity
to thank the many persons that have been of fundamental importance to me
over this period of time.

First of all, my gratitude goes to my supervisor, professor Bert Vierdag, and
my CO-supervisor, dr. Eric Myjer, who have given me all the freedom
I
wanted while remaining critical and, each in his own way, supportive.
Furthermore,
I
would like to express my gratitude to the other members of
my Promotion Committee,
viz.
professor AndrC Nollkaemper, professor
Hans Lammers, professor Nigel White, dr. Niels Blokker and dr. Henk
Leurdijk, for their careful study of the manuscript and their valuable
comments.
I
would also like to thank the Faculty of Law of the University of
Amsterdam for providing me with the necessary financial support which
enabled me to attend scientific conferences in Sarajevo, Lillehammer and
Cambridge, UK, as well as the T.M.C. Asser Institute in The Hague for
financially supporting my trip to Minsk.
A large number of people, be they family, friends or colleagues, have
(knowingly or not) truly supported me during my research and the writing of
this book.
I
would like to thank all of them (in bulk) very much. Special
mention deserve Catherine Brolmann, who, as my room mate, has witnessed
all my troubles and ups and downs for nearly four years, and Ramses
Wessel, with whom
I
have had the pleasure of writing several articles
together. Last but not least,

I
would like to thank my parents, brothers, and
grandparents, for their ongoing and unconditional support.
Needless to say, the author alone is responsible for any mistakes or errors
occurring in the book. The research for this book was concluded December
2000.
GdD
UtrechtIAmsterdam, February 200
1
This page intentionally left blank
Table
of
contents
Preface
Table of contents
List of abbreviations
v
vii
xvi
Chapter
1
-
General introduction to the study
1. INTRODUCTION TO THE STUDY
AND PROBLEMS ADDRESSED
1.1 Introduction
1
1.2 Main questions and purposes of the study 2
2.
OVERVIEW OF CONTENTS 4

3. METHODOLOGY OF THE RESEARCH 5
4. HISTORICAL DEVELOPMENTS IN
ARMS
CONTROL
PRIOR TO THE ESTABLISHMENT OF THE
UN
4.1 Introduction 6
4.2 Arms control agreements before WW I
7
4.3 The impact of WW
I
on arms control 11
4.4 The legality of war and the emergence
of substantive arms control law 11
PART
I
THE LAW OF ARMS CONTROL
Chapter
2
-
The place of the law of arms control in the international
system
1. Introduction
16
2. ORIGINS OF AND INCENTIVES FOR ARMS CONTROL
IN THE INTERNATIONAL SYSTEM
2.1 The international system and military power 16
2.2
The (political) concept of arms control
2

1
2.3 The changing scope of 'arms control' 23
3.
THE SECURITY CONTEXT OF
ARMS
CONTROL
3.1 The interrelationship between national and international security
27
3.2
The interrelationship between
arms
control and security
29
3.3
The interrelationship between law and
politics
in the field of arms control 33
vii
4.
THE LAW OF ARMS CONTROL: DEFINITION
4.1 The law of arms control as a special branch of international law
4.2 The substantive law of arms control
4.3 The institutional law of arms control
4.4 The common ultimate objective of the arms control process
5. INTERNATIONAL LAW APPLICABLE TO THE BEHAVIOUR
OF STATES WITH REGARD TO THEIR NATIONAL
ARMAMENTS OUTSIDE THE LAW OF ARMS CONTROL
5.1 The applicability of rules of international law
to the law of arms control
5.2

The
law of arms control and
the
laws of war
Chapter
3
-
Special characteristics of the law of arms control
1. Introduction
2. CHARACTERISTICS OF THE SOURCES
OF ARMS CONTROL LAW
2.1 The sources of international law
2.2 The importance of treaties in arms control law
2.3 Classification of arms control treaty law
2.4 Arms control law as part of peace treaties
or ceasefire arrangements: dictated arms control law
2.5 Arms control treaties voluntarily entered into
by the States Parties: consensual arms control law
2.5.1 Unilateral arms control measures
2.5.2 Bilateral arms control treaties
2.5.3 Multilateral arms control treaties
2.5.4 Treaties, Acts and Documents accessory to arms control treaties
2.5.5 'Politically binding' documents concerned with arms control
2.6 Customary international law in the field of arms control
2.6.1 Arms control and the nature of customary international law
2.6.2 The absence of an established body of 'customary
arms control law'
2.7. General principles of law relating to arms control
2.7.1 Arms control and the nature of general principles of law
2.7.2 General principles of arms control law and politics

2.8 Subsidiary sources for the determination of arms control law
3. CHARACTERISTICS OF THE SCOPE OF SUBSTANTIVE
AND
INSTITUTIONAL
ARMS
CONTROL LAW
3.1 The scope of substantive arms control law
3.1.1 Substantive nuclear arms control law
3.1.2 Substantive chemical arms control law
3.1.3 Substantive biological arms control law
viii
3.1.4 Substantive conventional arms control law
77
3.1.5 Substantive arms control law relating to future weapons
79
3.1.6 Substantive arms control law not related to a particular
category of weapons 80
3.2 The scope of institutional arms control law
80
4. CHARACTERISTICS OF THE PRACTICE
OF ARMS CONTROL
LAW
84
5.
CONCLUDING REMARKS ON PART I
86
PART
II
INTERNATIONAL SUPERVISION OF THE LAW OF
ARMS CONTROL: THEORY

Chapter
4
-
The international legal framework of supervision in the law
of arms control
1. Introduction
2. UNILATERAL SUPERVISION, DIPLOMATIC SUPERVISION
AND SUPERVISORY MECHANISMS IN ARMS CONTROL LAW
2.1 The notion of supervision at the international level
2.2 Unilateral and diplomatic supervision
2.3 The legal basis for the exercise of unilateral
and diplomatic supervision
2.4 International supervision
2.5 The legal basis for the exercise of international supervision
2.6 Supervision and types of rules
2.7 The
rationale
of supervision in arms control law
3. THE PROCESS OF INTERNATIONAL SUPERVISION
3.1 Different phases of the process of international supervision
3.1.1 Monitoring
3.1.2 Verification
3.1.3 Dispute settlement
3.1.4 Correction/enforcement
3.1.5 The interpretative element
3.2 Treaty-specific and treaty non-specific arms control supervision
4. SUPERVISORY MECHANISMS IN ARMS CONTROL
LAW: METHODS OF SUPERVISION
4.1 The institutional design of methods of supervision
4.2 Monitoring methods

4.3
Verification
methods
4.3.1 Methods of stage 1 of the verification process (fact-finding)
4.3.2
Methods of stage 2 of the verification process (review)
4.3.3 Methods of stage 3 of the verification process (assessment) 129
4.4 Methods of non-judicial dispute settlement
130
4.5 Methods of judicial dispute settlement
134
4.6 Methods of correction/enforcement 135
4.7 Methods of the interpretative element
139
5. SUPERVISORY MECHANISMS IN ARMS CONTROL
LAW: SUPERVISING BODIES
5.1 The 'institutionalisation' of supervisory mechanisms
through the establishment of international bodies
141
5.2
A
note on the powers and composition of supervising organisations
147
5.3 The relationship between the powers of supervising organisations
and powers of unilateral supervision
151
5.4 The objects of supervision as exercised
by supervising organisations 154
6. SUPERVISION
AND

COMPLIANCE
6.1 Potential motives for non-compliance with arms control treaties
157
6.2 A note on the question of effectiveness of supervisory mechanisms 158
7. CONCLUDING REMARKS 161
PART IIA
INTERNATIONAL SUPERVISION OF THE LAW OF
ARMS CONTROL: SELECTED TREATIES
Chapter
5
-
General features of supervisory mechanisms in multilateral
arms control treaties
1.
Introduction
2. MONITORING
2.1 Monitoring provisions in global arms control treaties
that apply to uninhabited territories
2.2 Monitoring provisions in other global arms control treaties
2.3
Monitoring provisions in regional arms control treaties
2.3.1 Monitoring provisions in Nuclear Weapon Free Zone Treaties
2.3.2 Monitoring provisions in the CFE Treaty
3. VERIFICATION
3.1 Verification provisions in global arms control treaties
that apply to uninhabited territories
3.2 Verification provisions in other global arms control treaties
3.3 Verification provisions in Nuclear Weapon Free Zone Treaties
3.3.1 Institutional design of the Tlatelolco Treaty
3.3.2 Methods of verification in the Tlatelolco Treaty

3.3.3 Institutional design of the Rarotonga Treaty
3.3.4 Methods of verification in the Rarotonga Treaty
189
3.3.5 Institutional design of the Pelindaba Treaty
192
3.3.6 Methods of verification in the Pelindaba Treaty
193
3.3.7 Institutional design of the Southeast Asia
Nuclear Weapon Free Zone Treaty
195
3.3.8 Methods of verification in the Southeast Asia
Nuclear Weapon Free Zone Treaty
196
3.4 Verification provisions in the
CFE
Treaty
199
3.4.1 Institutional design of the CFE Treaty
199
3.4.2 Methods
of
verification in the
CFE
Treaty
200
4. DISPUTE SETTLEMENT
4.1 Dispute settlement provisions in global arms control treaties
that apply to uninhabited territories
203
4.2 Dispute settlement provisions in other global arms control treaties

204
4.3 Dispute settlement in regional arms control treaties
206
4.3.1 Dispute settlement provisions in
Nuclear Weapon Free Zone Treaties
206
4.3.2
Dispute settlement provisions in
the
CFE Treaty
208
5.
CORRECTIONIENFORCEMENT
5.1 Provisions on correction/enforcement in global arms control treaties
that apply to uninhabited territories
208
5.2 Provisions on correction/enforcement in other
global arms control treaties 209
5.3 Provisions on correctiodenforcement in regional
arms control treaties 210
5.3.1 Provisions on correctiodenforcement in
Nuclear Weapon Free Zone Treaties
210
5.3.2 provisions on correctiodenforcement in the CFE Treaty 212
6.
THE INTERPRETATIVE ELEMENT 213
7. CONCLUDING REMARKS ON THE GENERAL FEATURES
OF SUPERVISORY MECHANISMS 2 15
7.1 General features of monitoring provisions in arms control treaties 2 15
7.2 General features of verification provisions in arms control treaties 216

7.3 General features of dispute settlement provisions
in arms control treaties 217
7.4 General features of correctiodenforcement in arms control treaties 21
8
Chapter
6
-
General features of supervisory mechanisms in global arms
control treaties featuring international organisations: OPCW, IAEA,
CTBTO
i.
Introduction
I.
THE CWC AND THE OPCW
1. A brief note on history
1.1 The 1925 Geneva Protocol
1.2 Decoupling chemical and biological weapons
2. SUBSTANTIVE LAW
IN
THE CWC
2.1 Objectives and purposes of the CWC: the CWC preamble
2.2 Article I
-
general obligations
2.3 The problem of dual use of chemicals
2.4 Schedule l, 2, 3 chemicals and facilities
3. THE SUPERVISORY MECHANISM OF THE CWC:
THE SUPERVISING BODY
3.1
The OPCW

3.1.1 The Conference of the States Parties (CSP)
3.1.2 The Executive Council (EC)
3.1.3 The Technical Secretariat (TS)
4. THE SUPERVISORY MECHANISM OF THE CWC:
METHODS OF SUPERVISION
4.1 Monitoring provisions in the CWC
4.1.1 Declarations on ownership or possession
(Art.
111)
4.1.2 Plans, Declarations and information relating to destruction
4.1.3 Declarations with respect to chemicals and facilities used
for activities not prohibited under the Convention (Art. VI)
4.1.4 Exchange of information: information to and from the TS
4.1.5 Information relating to assistance and protection
against chemical weapons
4.1.6 Monitoring methods in the context of inspections
4.2 Verification provisions in the CWC
4.2.1 Stage 1 of the verification process: fact-finding
4.2.1.1 Fact-finding with respect to chemical weapons
4.2.1.2 Fact-finding with respect to CWPF and other facilities
4.2.1.3 Methods of additional fact-finding
4.2.1.4 Fact-finding in regard to assistance and protection
against chemical weapons
4.2.2 Stage
2
of the verification process: review
4.2.3 Stage 3 of the verification process: assessment
4.3 Provisions on dispute settlement in the CWC
4.4 Provisions on correction/enforcement in the CWC
4.5 The interpretative element in the CWC

IT.
THE IAEA SAFEGUARDS SYSTEM AND THE
NPT
1. A brief note on history
1.1 The failure to outlaw nuclear weapons
1.2 Atoms for Peace and beyond
2. THE IAEA
2.1 Objectives and functions
2.2 Institutional structure of the IAEA
xii
2.2.1 General Conference 273
2.2.2 Board of Governors 273
2.2.3 Secretariat 274
3.
SAFEGUARDS
AS
A SUPERVISORY
MECHANISM
3.1 General aspects of the safeguards system
274
3.2 Monitoring provisions in INFCIRC/153
281
3.2.1 National system of accounting for and control of nuclear material 282
3.2.1.1 Records system 282
3.2.1.2 Provision of information
2 84
3.2.1.3 Reports system
285
3.3
Verification provisions in INFCIRC/153

286
3.3.1 Stage 1 of the verification process: fact-finding
286
3.3.2 Stages
2
and
3
of the verification process: review
and
assessment
293
3.4 Provisions on dispute settlement
3.5 Provisions on correction/enforcement
3.6 The interpretative element
4. ENHANCING THE EFFECTIVENESS OF THE
SAFEGUARDS SYSTEM: THE '93+2' PROGRAMME
4.1 Inducements to strengthen the system
4.2 The Model Additional Protocol
4.2.1 Objectives of the Model Additional Protocol
4.2.2 Monitoring provisions in the Model Additional Protocol
4.2.3 Verification provisions in the Model Additional Protocol
III.THECTBTANDTHECTBT0
1. A brief note on history
1.1 The development of nuclear weapons
1.2 Test ban and non-proliferation
2.
THE SCOPE OF THE SUBSTANTIVE
LAW
IN
THE CTBT

3. THE SUPERVISORY MECHANISM OF THE CTBT:
THE SUPERVISING BODY
3.1 The CTBTO
3.1.1 The Conference of the States Parties (CSP)
3.1.2 The Executive Council (EC)
3.1.3 The Technical Secretariat (TS)
4. THE SUPERVISORY MECHANISM OF THE CTBT:
METHODS
OF
SUPERVISION
4.1 Monitoring provisions in the CTBT
4.1.1 NTMs
4.1.2 International Monitoring System (MS)
4.1.3 The IMS and assessments regarding compliance
4.1.4 Confidence-Building Measures
4.2 Verification provisions in the CTBT
4.2.1 Stage 1 of the verification process: fact-finding
4.2.2 Stage 2 of the verification process: review
294
295
297
297
300
301
302
303
306
306
306
308

310
311
312
3 14
3 l6
317
3'17
317
320
321
32
1
322
327
. .
.
Xlll
4.2.3 Stage 3 of the verification process: assessment
4.3 Provisions on dispute settlement in the CTBT
4.4 Provisions on correction/enforcement in the CTBT
4.5 The interpretative element in the CTBT
ii.
CONCLUDING
REMARKS
PART
Ill
ENFORCEMENT OF THE LAW OF ARMS
CONTROL
Chapter
7

-
Supervisory mechanisms in arms control treaties and
enforcement under general international law
1. Introduction: co-operation and enforcement
2. VIOLATIONS OF ARMS CONTROL LAW:
NATURE
AND
SIGNIFICANCE
2.1 Criteria for categorising violations
2.2 The significance of violations of substantive arms control law
2.3 The significance of violations of institutional arms control law
3. REACTIONS TO VIOLATIONS: THE RELATIONSHIP
BETWEEN REMEDIES
IN
SUPERVISORY MECHANISMS
AND REMEDIES AVAILABLE UNDER GENERAL
INTERNATIONAL LAW
3.1 Introduction: possible concurrence of reactions to violations
3.2 Supervisory mechanisms in arms control treaties and reactions
to violations pursuant to the law of State responsibility
3.2.1 Non-military countermeasures as reactions to violations
3.2.2 Restrictions on the employment of countermeasures due to
the existence of a treaty regime
3.2.3 Restrictions on the employment of countermeasures 'in kind'
due to the existence of a treaty regime
3.3 Supervisory mechanisms in arms control treaties and general
law of treaties reactions to breaches of treaty
3.3.1 Introduction
3.3.2 Withdrawal, termination or suspension of the operation of a treaty353
3.3.2.1 Withdrawal from a treaty 354

3.3.2.2 Termination or suspension of a treaty as a consequence
of its material breach 356
3.3.3 Breach of prohibitions of use: the effect of inter-State armed
conflict on the validity and operation of arms control treaties
360
3.4 Supervisory mechanisms in arms control treaties and the role
of the Security Council in enforcing compliance
3 64
xiv
4.
CONCLUDING
REMARKS
5.
CONCLUDING REMARKS ON THE ROLE
OF
INTERNATIONAL LAW IN ARMS CONTROL
Chapter
8
-
Summary and conclusions
1.
The law of arms control
2.
Special characteristics of the law of arms control
3.
International supervision of the law of arms control
4.
International organisations as supervisors in arms control law
5.
Some common characteristics of supervisory mechanisms

in arms control treaties
6.
Enforcement of the law of arms control
REFERENCES
(Bibliography, Official Documents, Table of Cases)
Annexfigure
I:
Model for the General Analysis of Supervisory
Mechanisms in Arms Control Treaties
INDEX
List of Abbreviations
ABM
AFCONE
AJIL
APM
ASEAN
BWC
CD
CFE
CSP
CTBT
CTBTO
CWC
CWPF
D-G
DPRK
EC
EJIL
EPIL
EURATOM

GCD
GYIL
IAEA
ICBM
ICJ
IC J Rep.
IDC
ILC
ILM
MS
INF
LJIL
LNTS
LTBT
NATO
NILR
NNWS
NPT
NTMs
NWFZ
xvi
Anti-Ballistic Missile
African Commission of Nuclear Energy
American Journal of International Law
Anti-Personnel Mines
Association of South-East Asian Nations
Biological Weapons Convention
Conference on Disarmament
Conventional Forces in Europe
Conference of the States Parties

Comprehensive nuclear Test Ban Treaty
Comprehensive nuclear Test Ban Treaty Organisation
Chemical Weapons Convention
Chemical Weapons Production Facility
Director-General
Democratic People's Republic of Korea (North Korea)
Executive Council
European Journal of International Law
Encyclopaedia of Public International Law
European Atomic Energy Community
General and Complete Disarmament
German Yearbook of International Law
International Atomic Energy Agency
Intercontinental Ballistic Missile
International Court of Justice
Reports of Judgements, Advisory Opinions and Orders
of the ICJ
International Data Centre
International Law Commission
International Legal Materials
International Monitoring System
Intermediate-range Nuclear Forces
Leiden Journal of International Law
League of Nations Treaty Series
Limited nuclear Test Ban Treaty
North-Atlantic Treaty Organisation
Netherlands International Law Review
Non-Nuclear Weapon States
Treaty on the Non-Proliferation of Nuclear Weapons
National Technical Means

Nuclear Weapon Free Zone
NWS
NYIL
OAS
OAU
OPANAL
OPCW
OSCE
OS1
PCIJ
PNEs
PNET
Res.
SSOD
SSSF
START
su
TLE
TNT
TS
TTBT
UK
UN
UNGA
UNSC
UNSCOM
UNS-G
UNTS
WEU
WW

Nuclear Weapon States
Netherlands Yearbook of International Law
Organisation of American States
Organisation of African Unity
Agency for the Prohibition of Nuclear Weapons in Latin
America
Organisation for the Prohibition of Chemical Weapons
Organisation for Security and Co-operation in Europe
On-Site Inspection(s)
Permanent Court of Intemational Justice
Peaceful Nuclear Explosions
Peaceful Nuclear Explosions Treaty
Resolution
Special Session on Disarmament
Single Small-scale Facility
Strategic Arms Reduction Treaty
Soviet Union
Treaty Limited Equipment
Trinitrotoluene (a powerful explosive)
Technical Secretariat
Threshold Test Ban Treaty
United Kingdom
United Nations
United Nations General Assembly
United Nations Security Council
United Nations Special Commission
United Nations Secretary-General
United Nations Treaty Series
United States of America
Western European Union

World War
xvii
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General introduction to the study
1.
Introduction to the study and
problems
addressed
I. I
Introduction
In the community of States, as in any community, order is a primary value.
Public international law constitutes a fundamental means for structuring and
regulating the relations between States in the international order.' Some
decades ago already, it was observed that the structure of international law
was changing, from the law of CO-existence towards the law of co-
operation.* One of the first areas where the necessity of co-operative
behaviour between States has been recognised is in the maintenance of
international peace and security. As
a
guiding principle, it can be upheld that
most of the time most of the States benefit most from a situation of
international peace and security. At the same time, it should be
acknowledged that in exceptional circumstances the international
community as a whole will benefit more from (limited) warfare than from a
peacehl situation in which a State is allowed to pose a serious threat to
intemational peace and security; the collective security system of the United
Nations
(UN)
is based on this concept.
History shows that the build-up by States of massive arsenals of weapons

culminating in a quantitative as well as a qualitative arms race is one of the
reasons that war and other forms of armed conflicts have occurred. The idea
that arms should be controlled in order to avert war dates back a long time.
Since the nineteenth century, an extensive number of arms control
agreements has been concluded and recent events have attracted renewed
attention to international arms control. Examples include the imposition of
an arms control regime on Iraq by the UNSC (since 1991), the inclusion of
arms control paragraphs in the Dayton Peace Agreement for the Former
Yugoslavia (1995) and the discussions on the compatibility of the 1972
ABM
Treaty with the revived US concept of national missile defence (since
about 1999). The nuclear test explosions conducted by India and Pakistan in
May 1998 and the launch of a three-stage missile on
31
August 1998 by the
'
The notions 'international law' and 'public international law' are used as synonyms
throughout this study.
*
See generally Friedmann
(1964).
1
DPRK
(North Korea) have caused the issues of nuclear arms control and
ballistic missile threats to appear at the top of the agendas of States and
various international organisations.
Today the subordination to international law of States' behaviour with
regard to national armaments remains problematic in many respects,
notwithstanding the clear developments that have taken place regarding the
manner in which States choose to organise themselves when dealing with

problems of arms control. In the post Cold War situation, the political order
appears to be changing further, towards interdependence.3 This development
has not fundamentally changed the basic attitudes of 'Western', 'Eastern'
and 'Non-Aligned7 groups of States towards arms control law, and
negotiations on arms control issues still take many years without their
success being guaranteed, even after the conclusion of a treaty
-
as the
difficulties surrounding the entry into force of the CTBT ill~strate.~
Regulating the behaviour of States with regard to their national armaments
has in many respects proven to be difficult and complex. For this, one
paramount explanation comes to the fore: the national security interests (and
subsidiary interests, such as economic ones) of different States in the field
of arms control are too divergent to allow for the emergence of large-scale
(let alone global) consensus on many fundamental issues. This begs the
question how international law has dealt with the inherent tension between
the well-perceived necessity of co-operation between States in order to
establish a situation of international peace and security on the one hand, and
the equally well-perceived necessity of each and every State to pursue its
national security interests on the other hand. Whereas the first necessity
implies the need for international regulation and a progressive reduction of
armaments, the second necessity emphasises national self-defence,
justifying the maintenance of at least an adequate level of armaments.
1.2
Main questions andpurposes of the study
Against this background, the present study endeavours to contribute to the
understanding of the role of international law in the international arms
control process.
In
the

jrst
part of this study, the 'law of arms control' is
identified as a special field of international law according to its legal
characteristics. Furthermore, in this part the relationship between arms
control, international law and the quest for the maintenance of international
peace and security is discussed. The
second
part of this study is devoted to
one of the most important features of the law of arms control, viz. the
See Jacquet
(1
992).
The
CTBT
was opened for signature on
24
September 1996, but the number of
44
specified
States
(Art.
XIV)
required to effectuate entry into force of the treaty has as yet (2000) not
been reached. After the refusal by the American Senate to ratify the treaty (on
13
October
1999), it may very well take years before entry into force of the
CTBT
comes within reach.
See

infra,
chapter
[6].
appearance of (more or less elaborate) supervisory mechanisms. The
conviction has grown, both in theory and in practice, that only if States'
behaviour in respect of arms control law can be carefully supervised, States
are willing and able to submit their behaviour to international law and to
respect any reasonable outcome of the supervisory procedures. The search
for insights and trends with regard to the supervision of compliance with
arms control law is undertaken by analysing the most important legal
documents along the lines of a general theory of supervision. This theory is
applied to a broad selection of multilateral arms control treaties currently in
force. Special emphasis is on those treaties that create the most elaborate co-
operative structures, viz. the safeguards system of the
IAEA
in connection
with the NPT, the
CWC
and the CTBT. These treaty regimes have
established specialised international organisations as supervising bodies.
In
the analysis of the supervisory mechanisms, the division of powers between
the States Parties to the treaty and the supervisory body has to be taken into
account. The
third
and final part of the study addresses the question of
enforcement of arms control law by focusing on the powers regarding the
enforcement of compliance that, in respect of the supervising bodies, derive
from the treaty regime, and that, in respect of the States Parties, derive from
general international law.

As already appears from the above, this study addresses three main
questions.
In
Part
I
(chapters
[2]
and
[3]),
the question that will be addressed
is: what is the place of the law of arms control in the system of international
law and politics and by what special legal characteristics can this field of
law be identified? Then, in Parts
D
and
IIA,
on international supervision of
the law of arms control, theory and selected treaties
-
see chapters
[4]
to
[6]
-
a theory on supervision, as applied to the law of arms control, will be
enunciated and supervisory mechanisms in selected arms control treaties
will be described and analysed in order to answer the question which
general features of supervision in arms control law may be discerned.
In
Part

HI,
entitled 'enforcement of the law of arms control' (chapter
[7]),
the
enforcement of arms control law is discussed, by addressing the question
how the legal interrelationship between the powers of law enforcement that
are exercised by supervising bodies and those of the individual States
Parties can be characterised.
To summarise, the purpose of this study is to provide
a
deeper
understanding of the role of international law in the arms control process,
primarily by presenting an analysis of the process of international
supervision and enforcement of arms control treaty law. This study more
specifically aims to provide insights into the legal characteristics of the body
of law that constitutes the law of arms control, to offer an analysis of
supervisory mechanisms in arms control treaties as well as an inventory of
their common general features, and to discuss the basic problem of
enforcement of arms control law in cases of alleged or established non-
compliance.
2.
Overview
of
contents
An
introductory chapter offers an ideal opportunity for giving a historical
sketch, and so the final paragraph of this chapter addresses the historical
developments in arms control prior to the establishment of the
UN.
In

chapter
2,
the
law of arms control will
be
defined as a field of law and
systematically placed within the larger framework of the politics and the law
of international peace and security. It will be argued that its place in this
framework accounts for most of the special legal characteristics of arms
control law.
In
chapter
3,
special legal characteristics of the law of arms
control will be identified, as they are found in the sources of arms control
law, in the scope of its substantive law as compared to the scope of the
institutional law, and in the absence of practice in the application of some of
the special supervisory procedures.
In
order to be able to answer the question what general features are common
to supervisory mechanisms in arms control treaties, it is necessary to make a
comparative analysis of the supervisory mechanisms of those treaties. To
that end, in chapter 4, a theory is presented for the analysis of supervisory
mechanisms in arms control treaties.
In
chapter
5,
this theory is applied to
multilateral arms control treaties in order to provide an in-depth analysis of
the common characteristics of their supervisory mechanisms.

In
chapter
6
the theory is likewise applied to the three global arms control treaties NPT,
CWC and CTBT. Emphasis will be on the general features of the
supervisory mechanisms of these treaties, thereby taking account of
additional points of interest (such as historical notes, dual-use issues and
confidentiality regimes).
Finally, chapter
7
deals with the division of powers of law enforcement
between individual States Parties on the one hand, and supervisory bodies
on the other hand, by raising the question as to what extent States Parties to
arms control treaties have retained the right to make use of enforcement
measures that are commonly available to them pursuant to general
international law, when there is at the same time a treaty-based supervisory
mechanism available on the basis of which the supervisory bodies can
exercise certain powers of enforcement.
This study offers an in-depth overview of the law of arms control as it
stands in the post Cold War situation and provides a comprehensive theory
and model for the analysis of supervisory mechanisms in arms control
treaties.
It
is endeavoured to take account of the long-term development of
the law of arms control, against the background of the many political
processes that influence this field of law. Since this study is not only meant
to be of interest to international lawyers but also to political scientists and
policy-makers, certain concepts of international law, full understanding of
which cannot be taken for granted where non-lawyers are concerned (such
as the concept of how customary international law is created), will be

explained before being applied.
3.
Methodology of the research
In
accordance with the positivist legal tradition, it is upheld in this study that
a scientific inquiry into any field of law should have as its object what 'is'
and not what 'ought' to be. Therefore the inquiry in this study, which
involves questions such as 'what are the legal characteristics of arms control
law?', 'what are the general features of supervision in arms control law?',
and 'what mechanisms are available with regard to enforcement of
compliance with arms control law?' has as its object
lex lata.
It is probably the primary task of an international lawyer to answer the
question 'what is the law?', rather than 'what should the law be?'. The first
question is a legal question, the other, interesting and important as it may be,
is not.'
A
positivist approach to law is an ideal tool for stocktaking: where
does "existing" law stand on the matter?6 One consequence of making this
choice of approaching the law of arms control as it is and how it has
developed so far rather than concentrating on how the law should be and in
what direction it (eventually) should develop, is that a clear so-called
'Western', 'Eastern', or 'Non-Aligned' stance in matters of arms control can
be avoided as much as possible. Still, the law that 'is' is not completely
severed from the law that is about to 'be':
lex lata
may help shape future
law. The fact that international law with regard to arms control is the result
of international political processes is constantly apparent and has to be taken
into account when that law is being discussed. The importance of the

political relations between States for the negotiation of arms control
arrangements and their interpretation and application is even further
enhanced by the fact that arms control law is dominated by considerations of
security, which as a concept is
-
to say the least
-
more of a political than of
a legal nature.
Keeping the above in mind, the present study relies heavily on the analysis
of 'primary' sources, i.e. treaties and other official documents, such as
decisions and resolutions of international organisations, (final) acts of inter-
governmental and other conferences and, occasionally,
travaux
prkpavatoives.
The theory used to analyse supervisory mechanisms in arms
control law has been developed starting from earlier treaty analysis (namely,
See Weiler
&
Paulus
(1997),
p. 550.
See Simma
&
Paulus
(1999),
p. 308.
of the
CTBT~)
that is subsequently applied to and put to the test with regard

to other multilateral arms control treaties in force.
Of
course this method of
research does not exclude the possibility of making critical comments on the
'state of the law' in the field of arms control with a view to bringing it closer
to what it 'ought' to be, but in this field especially it is important not to
pretend that wishful thinlung
lege ferenda
is part of
lex lata.
Obviously there is a strong interaction between the theory presented in
chapters
2,
3,4 and
7
and the treaties to which it is applied in chapters
5
and
6,
albeit that this connection is not a normative one
-
that is to say that the
theoretical framework for analysis presented in this study is an aid to
provide a deeper understanding
of
the structure
of
supervisory mechanisms
in arms control treaties; it is not to be considered as a set of criteria that
supervision in arms control law should meet. Regarding both the theoretical

parts and the treaty analysis, naturally also 'secondary' sources, such as
monographs, articles, conference papers,
etc.
have been made use of.
Finally, it should be stressed that the practice of arms control law in the
sense of the day to day functioning of arms control treaty regimes is not the
subject of this study. Whereas the discussion of the implementation and
practical functioning of particular arms control treaties would detract from
the coherent handling of the main questions and purposes of this study, most
(known) practice of arms control law does not warrant separate discussion
in the first place
-
apart from a few notorious cases of established non-
compliance, which are discussed in chapters [3] and
[6].
4.
Historical developments in arms control prior to the establishment of
the
UN
4.1
Introduction
For a proper understanding of today's arms control law, knowledge of the
ideas of yesterday's drafters of the law is indispensable. Since law has
evolved in and is a reflection of social and political reality, the thinking
about arms control is largely determined by historical conceptual
devel~~rnents.~ Mankind has such a long and continuous tradition of
bloodshed that any history of warfare will serve to provide a good outline of
human history as a wh01e.~ Closely connected to the emergence and
This analysis appears in Den Dekker (1997).
The inventory of arms control agreements that appears in this section is based, first and

foremost, on Dupuy
&
Hammerman (1973). The definition used by Dupuy and Hammerman
to identify 'arms control and disarmament agreements' is the following: 'disarmament' means
that actual reduction in armaments is referred to and 'arms control' is used for all other kinds
of restrictions or limitations on weapons employment (p.
V).
It is illustrative that the first documented treaty ever, dating back to 3
100
BC,
was a peace
treaty. It was concluded to end a war between two Mesopotamian city-states, the common