Williamson – Hard Law, Soft Law, and Non-Law in Multilateral Arms Control: Some Compliance Hypotheses

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).

Sari – Blurred Lines: Hybrid Threats and the Politics of International Law

This week marks the start of a reduction in output for TTAC21. After about a year of work from all of us, it has become apparent that the 4 or 5 pieces each month that we were reviewing can take up a bit more time that would be ideal. So, we are switching down to 2 or 3. If you have previously been put off joining the network by the number of readings, but are now interested just send us an email. All are welcome.

Now, onto our reviews. We are again looking at hybrid warfare, or hybrid threat. Following on from the poisoning of Sergei and Yulia Skripal, and some other questionable deaths of Russia ex-pats, in the UK the hybrid threat issue has remerged after a flurry of interest during the Crimean crisis of 2014. Prior to this recent increase in interest, Aurel Sari wrote ‘Blurred Lines: Hybrid Threats and the Politics of International Law‘. It is a consideration of how international law can be used as a counter to hybrid warfare, and hybrid threats, and how it should go about being used.

Here’s what we thought. If you’ve got anything you would like to say about it, just pop it in the comments box below.


The 2018 paper, ‘Blurred Lines: Hybrid Threats and the Politics of International Law’, recognises an important need to re-engage with the politics of international law to prevail in, what Sari describes as, ‘the current strategic environment’.  Sari argues that such an environment exists as a result of the blurred lines between what is legally described as war and peace. These blurred lines are being used in the manipulation of legal concepts and thresholds in order to disguise violations of international law.  Although this article recognises a valid problem in international law, I have grave concerns with the proposed solution to this problem; ‘Western nations and institutions’ are called upon to save the international legal order against, what Sari repeatedly refers to as, the ‘adversaries and competitors’.

The reader is reminded of Russia’s 2014 ‘brazen violation of international law’ in its intervention in Crimea. There is also mention of the maritime activities of China that do not coincide with the West’s concept of international order. Other than Russia and China, it is not clear exactly who else comes under the classification of ‘adversaries and competitors’. Do all non-Western nations and institutions come within this classification? Surely not, as the inherent problems of such an ethnocentric view are obvious.

It is also not clear how Sari has come to the conclusion that it is only the ‘Western nations and institutions’ that can act as the saviours of the international order. Whilst reading this article, I felt an unease with the running theme of colonial-era thinking that only the West matters. The article makes the assumption that it is the West that are the only ones who are qualified ‘to promote their vision of international order’ (emphasis added). However, Western nations and institutions are not immune from exploiting international law or acquiescing in such exploitations. We only have to look at the US-led operation in Syria against Daesh and the invocation of the ‘unwilling or unable’ doctrine by various states to see how international laws can be strategically manipulated for a states’ advantage.

Positioning the West against the rest of the world under, what looks a lot like, an ‘us v. them’ paradigm, is not the solution to the ‘current strategic environment’. The international order is an order that governs all states. If we are to take measures to prevent the abuse of international law, then we need all states to be involved in this process – not just the states and institutions from the West.

Jasmin Nessa, University of Liverpool


In this article, Aurel Sari examines increasing ‘instrumentalisation’ of law to achieve political ends, citing examples such as the Russian ‘intervention’ in Crimea. In response to the instrumentalisation of law, the author calls for concrete measures in three distinct areas: legal preparedness, legal resilience and deterrence, and legal defence. While the author focusses primarily on legal approaches to political problems, he unfortunately lacks political insights into what is a difficult and complex challenge. The biggest weakness here is that the author fails to suggest any meaningful solution to the question of international relations between States that often lack the political and/or military desire to act on threats of action against those States that act unlawfully.

Mike Ryder, Lancaster University


I really enjoyed this article, and think the problem of the blurred lines of hybrid threats and the politics of international law are extremely important subjects, and serious threats to present-day international institutions. I especially appreciated the solution-oriented thinking, although I wish the author expanded a bit more on how to achieve the proposed solutions, as those are not easy endeavours. I agree with what the author said, so I will not spend too much time criticising their opinion. Instead, I will focus on the big glaring omission of the article: Western blurred lines.

The article overwhelmingly discusses threats to international law by adversaries to the West, and how the West should respond to uphold international law. Kosovo and Iraq are mentioned somewhere in a sub-clause, but Western actions are otherwise barely considered. This is problematic, as Western countries have always also promoted a certain flavour of international law that is in their own interests, and have violated international law when it suited them. Consider many arms control treaties, devised in a way so the West does not lose its military advantageous position; the questionable status of nuclear sharing under the NPT; the lack of respect for international law when going to war in Iraq; or the fact that Israel is the lawfare pioneer par excellence. When will we see accountability for torture in Guantanamo or political follow-up on the Chilcott report? It reminded me of a recent interview where NYT journalist Jim Rutenberg claimed that Russian interference in US elections was bad, but US interference in other regimes is very different, as it is for the greater good. The cognitive dissonance is striking.

It is completely right to question the practices of Russia in Crimea, or Assad’s use of chemical weapons in Syria. I whole-heartedly agree that they are serious threats to international institutions as a whole. But one should not be blind for the actions of the West, and pretend there is no politics behind which countries and practices they consider problematic and which they do not. Western countries violate or (ab)use international law too, which is also a threat. I promise you that many countries in the Global South certainly do not see the West as firm protectors of international law. Furthermore, the selective outrage against Russia, China or Syria, but not against the USA or Israel, weakens the credibility of Western accusations. This janus-face risks that valid accusations about horrendous acts of chemical warfare in Syria are perceived as just another political stick to hit Russia with. This perception is extremely dangerous, as it leads to disillusionment and makes it significantly harder to restore respect for international law, which is urgently needed.

Dr Aurel Sari mentions three countermeasures against the threats to international law: strengthening legal preparedness, legal resilience and deterrence, and the capability for legal defence. I would thus add a fourth: More self-reflection and accountability for one’s own actions, and lead by example.

Against this proposal I can already hear the criticism: You are so naive. You are hypocritical, only criticising the West ignoring Russia and China. The West is so much better, and Western self-critique harms our global position Against that I have the following to say: (1) I agree with the basic premises of the article, but the omission of Western actions really weakens the argument, so that is what I comment on. It inaccurately represents reality. (2) It is rather concerning that in the current political climate the debate has become so polarised and black-and-white that questioning the established narrative leads to accusations of Russia-apologia. Disapproval of Western actions are not the same as approval of Russian actions. Russia is an authoritarian regime that violates international law and human rights. This does not mean they are an evil mastermind plotting the breakdown of the Western order and international institutions as a whole. The debate on information warfare has become completely hysterical, and seriously lacks self-reflection and taking responsibility. It is easier to pretend that Russia rigged your various elections and referenda than to admit how xenophobic or racist your population is, or that there might be a reason why your population is so disillusioned with its government. (3) I honestly believe it will strengthen Western arguments against violations of international law if they were known to be more accountable and self-reflexive themselves. It would strengthen international norms, increase credibility and remove ammunition against them, so this advice would thus actually be beneficial to them. (4) My advice is also not limited to Western countries. I wish all countries were more self-reflexive and

accountable. That said (5), I am Western, writing for a Western audience, from a democratic country with freedom of the press. I can affect Western policy a lot easier than I can affect Syrian policy. I think it is a natural phenomenon to be the most critical of one’s own country or community. I know it the best, and care about it. Misdoings bother me especially because I think we can do better, and because I want my community to uphold my personal values.

Maaike Verbruggen, Vrije Universiteit Brussel  


This article aims to highlight the growing necessity for the West to re-engage with the politics of international law in the face of adversarial subversive activities that breach, challenge and threaten the integrity of legal systems. The author discusses the “instrumentalisation” of law: the use of law by adversaries and competitors as a tool to augment diplomatic, economic, military and intelligence activities. What I found most interesting in this piece was that in order to confront these challenges of instrumentalisation, the author goes on to outline steps that themselves somewhat resonate with this notion of instrumentalising law; albeit in a less subversive fashion. It is suggested that Western states must put in place “…processes and capabilities to deny adversaries the benefits of using law as an asymmetric lever of influence.” (p. 6). Whilst mitigating Western legal vulnerabilities is, of course, essential – looking at this a little differently, does not creating and placing such processes and capabilities of denial (if underpinned by legal frameworks) amount to using law as an asymmetric lever of influence too, just in a different way?

There seems to be an underlying paradox associated with responding to/challenging adversarial breaches that is quite interesting to explore. It comes back to the idea of ‘lawfare’ – using/misusing law as a means to achieve an operational objective, but for me it also hints at a subtle overlap between the use and misuse of legal systems through the act of manipulation. Whether that is the manipulation of legal thresholds by hostile actors or the manipulation of legal systems and frameworks to mitigate these new threats through creating processes/capabilities of denial. This article consequently raised interesting thoughts for me about law and legal systems as simply extensions of the battlefield. Sari sums this up well when suggesting that Western states should acknowledge that “…law is a domain of competition, just like the land, maritime, air, information and cyber domains…”(p. 5); highlighting that law can be weaponised, manipulated and harnessed as an instrument to serve strategic advantages just as other domains more traditionally associated with war can. The lingering thought this paper left me with is: in order to prevent the erosion of legal integrity, how do Western states go about utilising law in such a way as to not inadvertently mirror the “instrumentalisation” of the law that we seek to confront?

Anna Dyson, Lancaster University.


I thought this piece brought a few interesting points together. Of course, as it is a policy paper, it is not very long and suffers a lack of detail as a result. But, it still gets the points across. I like Sari’s ideas of strengthening legal preparedness, resilience and deterrence, and capability for legal defence. But, all of this does beg the question whether Western nations defending a Western-dominated international order is because they want to retain the powerbase of international law, or because they want to defend something that usually works for most nations from other nations that want to subvert the global legal order for their own ends? There are also issues of whether Russia, China and other powers are trying to change the international legal order for their own ends, or to make it a more diverse and multi-polar system that represents and works for all people equally well, in the face of a Western-dominated history? I’m not really sure if international law has the tools to deal with this question, most of the international lawyers I know consider the extent of different perspectives that are worthwhile pursuing to be positivism v. natural law. Yet, if we turn to international relations theory, it turns into a classic realist v. liberalist debate. I guess this is a situation whereby there are no clear answers. Yet, it does seem that from a Western perspective, Russia and China are playing to win when it comes to International law.

Joshua Hughes, Lancaster University


UPDATED: added 1st April 2019, written earlier

The author of this piece makes a plea for a Western-led reinforcement of international legal norms as the most potent counter to revisionist states like Russia and their ‘instrumentalisation of law for political purposes’. Concerned that ‘[p]ersistent and serious breaches of international law undermine respect for the rule of law in international affairs’, they propose a three-step plan: strengthening local preparedness, including ‘identifying legal threats and taking stock of legal vulnerabilities at the national and institutional level’; strengthening their legal resilience and deterrence; and strengthening their capability for legal defence.

All of this seems like very reasonable advice, although Western institutions have gifted themselves a steep uphill climb here through their own historic ‘persistent and serious’ breaches of international law when it suited them, from the CIA’s Cold War government-toppling misadventures to the Pakistani drone war of today. However, one hopes that states, like people, can change, and if they were truly interested in reclaiming this mantle as defenders-of-the-norms, I would suggest that they start by making sure their own house is order. Perhaps they could dip their collective toes in the water and consider doing something about the ethnic cleansing of Kurds that NATO ally Turkey is currently chomping at the bit to finish in Northern Syria. Just a thought.

Ben Goldsworthy, Lancaster University


Let us know what you think!