This week, we are looking at Hard Law, Soft Law, and Non-Law in Multilateral Arms Control: Some Compliance Hypotheses by Richard L. Williamson (Chicago Journal of International Law 4, no. 1 (2003): 59–82), available here. It is a great overview of the different pros and cons that hard law, soft law and political norms have in the arena of arms control. Definitely worth reading. Let us know what you think in the comments below, or get in touch to join the network.
Here’s what we thought:
In this article the author provides a broad overview of legal vs non-legal approaches to addressing the question of arms control. In it, he argues that the ‘overall compliance record in arms control is a good one’ (61), but points to the fact that law is not always the best option to make the world a safer place. While law is an important factor, the author calls for a mixed approach adopting ‘a full complement of treaties, modified or supplemented over time to meet changing conditions, and supported with soft law and non-law measures’ (82).
The author’s analysis is certainly interesting, and a useful reference for those factors that make law more or less of an effective measure in the context of international arms control. However, while the author asserts that the overall compliance record in arms control is a good one, this is not to say that there aren’t further transgressions taking place that we don’t know about, given the fact that, by their very nature, States will attempt to avoid detection when it comes to breaking terms of any agreements or international laws that may apply.
The author’s arguments apply only because they apply to the world as we understand it (or rather understood it in 2003); but this is not to say that they won’t change in the future, or as our understanding of the present-day world changes. We must also then consider the role of non-State actors and even big business in the control of arms, and even the competing forces at works within individual nation States that again, serve to raise questions about the validity of the author’s arguments when made on such a broad, sweeping scale.
Mike Ryder, Lancaster University
This piece was excellent and I really enjoyed it. Unfortunately for the purposes of comment, it was an overview of an area, rather than making an argument. Something that the author mentions in terms of verifying that states are complying with the relevant measures is the actions of foreign intelligence agencies. We have seen this recently where Israeli intelligence found evidence of Iran breaching its obligations under the nuclear deal they agree with the P5+1. This did make me wonder if, in circumstances where an arms control measure has no verification body, are revelations made possible due to the behaviours of intelligence agents part of a bigger political game? For example, if the American CIA found evidence of Russia cheating on its arms control obligations, the obvious next action would be to expose them in order to force compliance with their obligations. However, it would also be rational for the Americans to sit on this intelligence if a larger win could be gained. For example, Russia could be blackmailed, the timing of the intelligence release could be done at a crucial moment for Russia in international politics, or it could be released to move focus away from American arms control compliance.
As we know, international law cannot be separated from international politics. But, perhaps in thinking only in legal logic, we international law thinkers miss key bits of information that could inform a greater level of understanding.
Joshua Hughes, Lancaster University
In contrast to the previous paper, and though they concur that the Biological Weapons Convention is a failure (for traditional reasons rather than any of indeterminate language), this paper argues that soft law certainly has its place in the diplomat’s arms control box of tricks, along with hard law and ‘non-law’. The authors propose that hard law is best suited to situations where invasive monitoring is required, or when compliance is easy, whilst soft law wins out ‘if it is a derivative of, amplifies, or interprets a binding obligation’. The analysis of the pros and cons of ‘non-law’ instruments (e.g. the threat of mutually-assured destruction or a technological inability to not comply) is a little less developed, but the authors conclude that these are likely to be effective ‘when the military utility of acquiring or deploying a particular armament is modest, and the political costs of noncompliance would be large’.
It seems that effective soft law can best be thought of as chipping the final details off of a sculpture built up out of hard law. I’m less convinced about the efficacy of non-law such as ‘parallel restraint’, as the current lack of restrictions on the use of cyberwarfare and its subsequent prevelance suggests the lack of a clear red light is equivalent to a green one in the eyes of military planners. As one final criticism, the authors write that, ‘[w]hile the record of compliance with arms control treaties is far from perfect, it is statistically quite good’ and that ‘...most countries will comply most of the time’. The issue with this is that an arms control regime is better thought of as a High Reliability Organisation, and Normal Accident Theory and talk of compliance being ‘statistically quite good’ doesn’t have much of a place in the control of weapons that can cause catastrophic damage with a single use.
Ben Goldsworthy, Lancaster University
N.B. For those interested, the main image is of Ford and Brezhnev signing a joint communique folowing the Vladivostok Summit Meeting on Arms Control (Photo from the Gerald R. Ford Library, taken by David Hume Kennerly 1974).