Disarmament Documentation

'Compliance, Verification, Enforcement Keys to Arms Control Success', Washington File, November 30, 2004.

Agenda Item Nine: Status of Implementation of the Convention

Paula A. DeSutter, Assistant Secretary of State for Verification and Compliance
Statement at the Ninth Session of the Conference of the States Parties of the Organization for the Prohibition of Chemical Weapons [OPCW]
The Hague, The Netherlands
November 30, 2004

Mr. Chairman, Mr. Director-General, Distinguished Delegates:

It is with great pleasure that I address this Ninth Conference of the States Parties under the agenda item on Status of Implementation of the Convention. I want to thank you, Mr. Chairman, and the other officers of the Conference, for this opportunity, and for taking on the responsibility for guiding this distinguished body of delegates through the important items on the agenda.

In the past, we have used this particular agenda item to consider a variety of reports, and set aside time at the Conference to look at what has been accomplished. It is also a time to talk in concrete terms about the implementation of this Convention. Today I would like to continue that practice by sharing with you the United States' view on verification, compliance, and compliance enforcement. Together these elements are keys to our collective ability to achieve effective implementation and obtain the security benefits we all seek from arms control, nonproliferation, and disarmament agreements.

I recently had the opportunity to share these thoughts with the United Nations First Committee, and believe it is appropriate for this forum as well. Before discussing these issues, Mr. Chairman, let me first say that this body has accomplished a great deal, and continues to make steady progress on a number of important implementation issues, as noted earlier by Ambassador [Eric] Javits. We remain optimistic that such progress will continue under the leadership of the Director-General, the hard work of the Technical Secretariat, and with the strong support of member states. We also hope that the Technical Secretariat and all member states will continue to pursue the common goal we all share of preventing the use of chemical weapons. Let us hold each other accountable and be relentless in demanding strict compliance with the obligations of the Convention.

I encourage States Parties to become more involved and actively engaged in assuring effective verification and strict compliance with the Convention. Let me make clear that this is not the sole province of the Technical Secretariat, but a shared responsibility among states parties with the support of the Technical Secretariat. As the U.S. assistant secretary of state for verification and compliance, I am charged with leading the United States' verification and compliance of international arms control, nonproliferation, and disarmament agreements. In carrying out that responsibility much is considered, but the basis for the process begins with the key elements: verification, compliance assessment and compliance enforcement. Unfortunately, however, these three elements and the relationships among them are not always well understood. That said, let me share with you some of our thinking about the importance of these elements and the way they interact.

Verification, compliance assessment and compliance enforcement are the three components of a policy process wherein information about a state's actions is weighed against its obligations and commitments, and if it is determined that the state is not fulfilling its obligations and commitments, a decision must be reached on what action is required to enforce compliance.

As a general rule, with regard to most arms control and nonproliferation agreements, the first step in this process is to assess the extent to which an agreement can actually be verified. This step is undertaken in the United States before we enter into negotiations for a new agreement, during its negotiation as changes to the agreement are considered, and reviewed after an agreement has been concluded. We also work to ensure that any cooperative measures included in the agreement are properly and effectively implemented in practice.

The second step in this process is an assessment of the compliance or noncompliance of parties to the agreement, once the agreement has entered into force. The final step in this process is compliance enforcement: Determining what can or must be done to bring a party that is judged to have violated its obligations back into compliance or otherwise respond to that party's noncompliance, and then acting on that determination.

Many consider these factors verification, compliance, and enforcement -- as separate and separable activities. However, like a three-legged stool, one or two legs are not enough on which to stand; each leg is dependent on the others. Such is the case with the CWC [Chemical Weapons Convention] or any other arms control and nonproliferation agreement; there is a need for all states to ensure that these elements are put to use; otherwise the viability of the convention, and its objectives, are put at risk.

How Do We Reach Noncompliance Judgments?

There has been much discussion in many international fora about whether or not certain nations have violated their international obligations. There has been less discussion of the process by which nations reach their compliance judgments, and the methodologies they employ. But if we are to understand each other and work together to retain the benefits of our agreements, it is important that we understand the process by which each of us reach[es] our conclusions on compliance.

Let me, therefore, discuss the U.S. process for reaching noncompliance judgments. It is a process grounded in U.S. law, and for which the U.S. Congress has established specific institutions.

Initial indications of a potential problem of noncompliance can come from a broad array of sources, beginning with information already available to states parties -- such as declaration data, or any information that may flag an activity as a compliance concern. We assess and use information from various sources, both technical and non-technical. I also believe that all nations have or could have sources of valid or "validatable" [i.e., capable of being validated] information. While all information, whatever its source, warrants evaluation, information that can be independently confirmed is considered to be the strongest information, especially when it can be confirmed from multiple sources.

When the information available to us suggests that there may be a compliance question, or an issue that gives rise to a concern about the possible noncompliance of another state party, we carefully review the international agreement or other commitment in question to see what states parties are obligated to do.

It is always important, and sometimes decisive, to clearly establish what the precise obligation is in the case under review. While the review of obligations and commitments is underway, we seek all possible additional information regarding the activities of concern. Multiple sources of information are especially important when the matter is grave.

If an issue was raised in a previous U.S. compliance assessment and has been discussed with the party in question, we will closely examine that party's statements to determine if they resolve our concerns, or can help narrow the range of outstanding questions.

Ultimately, we weigh the best available evidence regarding the actions and activities of a country against that country's obligations [in order] to form our compliance assessments, and finally propose a finding to the U.S. president, who serves as the ultimate arbiter of U.S. noncompliance judgments. In cases where the information is not sufficient to reach a firm finding of violation, we will "caveat" it by explicitly noting uncertainties or ambiguities in the evidence. Whenever we can, we distinguish between inadvertent and deliberate violations, because this distinction can have an important bearing on what action is appropriate to rectify the problem. We also endeavor to communicate the degree of seriousness of a violation, and to identify the steps that may be needed to bring the party back into compliance, or to respond in other ways that would satisfy the concern.

Let me underscore, making a determination as to when another state is in violation with its international obligations is not a simple matter. The process is time-consuming, rigorous and systematic. However, as a state party to arms control, nonproliferation and disarmament agreements and commitments, we rest our safety and security in part upon other countries' compliance with those agreements and commitments. Therefore, the compliance assessment process is, for us, a key component of our national security.

When Is Verification Effective?

The compliance process that I have just described not only informs our judgments as to whether we are facing noncompliance that requires a response; it also informs our judgments as to whether future treaties are effectively verifiable.

Determining the extent to which an agreement can be verified necessarily involves a number of variables, both technical and contextual, that vary from one proposed agreement to the next, and which sometimes hinge upon specific verification elements that can be accepted, the nature of the constrained activities, and the past compliance record of prospective parties.

Many times we are asked if the U.S. demands "perfect" verification. The answer is, of course, NO. There is no such thing as perfect verification. The term "effectively verifiable" does not, and should not be taken to, mean that there is, or can ever be, certainty that a violation will be detected. This phrase indicates the aspiration to achieve reasonable confidence under the circumstances that detection of noncompliance will occur in time for appropriate and effective responses to be undertaken.

The U.S. considers a commitment or treaty to be effectively verifiable if the degree of verifiability is judged sufficient, given the compliance history of the parties involved, the risks associated with noncompliance, the difficulty of denying violators the benefits of their violations, the language and measures incorporated into the agreement and our own national means and methods of verification. The degree of verifiability must be high enough to enable the United States to detect noncompliance in sufficient time either to have the violation reversed or -- particularly in the case of deliberate noncompliance -- to reduce the threat presented by the violation, and to deny the violator the benefits of his wrongdoing.

Let me emphasize one point: We see the challenge of making verifiability and compliance assessments at a national as well as international level.

International organizations such as the OPCW and similar institutions can provide useful and essential input to nations for their consideration in making compliance assessments. They can provide useful fora for sharing information, for sharing judgments and for deliberating response options. But, international organizations are not parties to arms control and nonproliferation agreements, and they do not make final compliance judgments absent a collective decision by member states. States are parties to those agreements, and through their national compliance assessments are ultimately responsible for evaluating the compliance of other states parties to the agreement. Let me emphasize that each and every party has not only the right, but the responsibility, to assess and draw its own conclusions about the compliance of its treaty partners.

It is a common misperception that a combination of international data declarations, international cooperative measures (including technical measures) and on-site inspection regimes by themselves will be sufficient to detect noncompliance. In fact, data declarations, cooperative measures and on-site inspections can provide useful and often invaluable information. They are useful tools for monitoring compliance and investigating indications of noncompliance. However, inspections provide information according to the agreed access and collection capabilities negotiated by the parties, and only provide such information as is available at the specific time and place of the inspection. Even cooperative measures such as seals and remote cameras for continuous monitoring, while quite powerful, are limited to the locations where they are employed.

Inspections are an important means of assuring member states that the convention is operating to enhance their security, but we must never lose sight of the fundamental truth of all arms control inspections: The absence of evidence is not necessarily evidence of absence. Time and again, determined cheaters have proven capable of evading arms inspectors.

Some agreements like the CWC provide for challenge or suspect site inspections, in an effort to address these concerns. In a challenge inspection, inspectors are tasked to produce a report that contains both factual findings, as well as an assessment of the degree and nature of access granted for the satisfactory implementation of the inspection. The facts related to a challenge inspection may be difficult to determine, depending on the nature of the concern.

Challenge inspections may produce a report that states parties find inconclusive, and therefore may require further action to achieve resolution. As a result, a "successful" challenge inspection should not be exclusively defined as one that uncovers incontrovertible "smoking gun" evidence of noncompliance, or one that issues a "clean bill" of full compliance. Rather, a challenge inspection may be considered "successful" if it helps to increase clarity or advances efforts to resolve concerns about possible noncompliance.

To increase the likelihood that noncompliance -- especially undeclared activities at undeclared locations -- will be detected, one must be able to draw on all sources of information, both national and international. National means and methods of verification are thus necessarily a critical part of a comprehensive approach to verification.

After Detection, What?

In January 1961, in a seminal article in Foreign Affairs, Dr. Fred C. Ikle, a former Director of the U.S. Arms Control and Disarmament Agency, grappled with the issue of compliance enforcement. That article was entitled "After Detection What?" In the article, Dr. Ikle made the critical point that detecting violations is not enough. What really counts is to ensure that there are sufficient consequences to a violation once one has been detected. Dr. Ikle pointed out that these consequences alone will determine whether or not the violator stands to gain in the end. His words are as true today as when he wrote them over 40 years ago: Only by making violators face consequences for their violations can they be expected to take compliance seriously, and only by making them face such consequences will other would-be violators be deterred. Verification without consequences to detection is feckless. These consequences may be in the form of political, economic or other measures taken by international organizations or states parties.

If arms control, nonproliferation and disarmament agreements and commitments are to support the security of all nations, then all nations must actively work to promote compliance by all member states. In the event of noncompliance, states must decide how best to respond. Unilateral U.S. action to encourage compliance is not enough. It requires the concerted effort of all member states -- and with regard to the Chemical Weapons Convention, the Technical Secretariat. Detecting a violation is not an end in itself: It is a call to action. Without strict compliance, and without the concerted action of all states parties to insist upon strict compliance and to hold violators accountable for their actions, the national security of all nations will erode and global stability will be undermined.

I urge states parties to take seriously their role in this effort, and not to acquiesce quietly in violations of the fundamental obligations. My government will continue to raise concerns directly with individual states parties when they come to light. We will vigorously pursue effective verification and strict compliance with the CWC, as well as with other international agreements. We call upon other nations to do the same.

Mr. Chairman, in closing, let me once again thank you for the opportunity to share our perspectives on the important role of verification, compliance and compliance enforcement. These principles underlie our approaches to a range of vital issues that affect international peace and security, and I am pleased to have been able to outline them for you. The United States looks forward to discussing these issues further with member states, and to working with you to develop and to improve our collective effectiveness in meeting verification and compliance challenges. We have much to be pleased about, but a great deal more remains to be done.

Thank you, Mr. Chairman.