1. Let it be clear that this paper is an attempt to identify potential problems surrounding the implementation of and compliance with arms control measures in the GFA. It does not pretend to provide alternative solutions to the problems surrounding the maintenance of a stable peace in the OSCE region.

2. Text in 35 ILM (1996) p. 75. The GFA was initialled on 21 November 1995, at the Wright-Patterson Air Force Base near Dayton, Ohio, and signed in Paris on December 14. The GFA is also referred to as the ‘Dayton (Peace) Accords’. The GFA merely consists of a series of articles endorsing twelve Annexes, which contain international transitional arrangements (Annexes 1-A, 1-B, 10 and 11) and constitutional arrangements for Bosnia and Herzegovina (Annexes 2–9).

3. See McCausland, J.D., ‘Arms Control or disarmament? The case of the former Yugoslavia’, in 8 Helsinki Monitor (1997) No. 3, p. 58.CrossRefGoogle Scholar

4. In the Agreement on Regional Stabilisation, the Parties agree that establishment of progressive measures for regional stability and arms control is essential to creating a stable peace in the region (Art. I of Annex 1-B). Furthermore, in Arts. II-V of Annex 1-B, the Parties have approved a regional structure for stability, consisting of the following elements: Confidence- and Security-Building Measures in Bosnia and Herzegovina (Art. II); Regional Confidence- and Security-Building Measures (Art. III); Measures for Sub-Regional Arms Control (Art. IV); and Regional Arms Control Agreement (Art. V).

5. See ‘Peace Implementation Conference for the Bosnian General Framework Agreement: Conclusions of the London Meeting’, 12 December 1995, para. 11. Text in 35 ILM (1996) p. 223 at p. 227.

6. See the Conclusions of the London Meeting, para. 12(b), 35 ILM (1996) p. 227.

7. Florence, 14 June 1996. The text of the Agreement appears in SIPRI Yearbook 1997; Armaments, Disarmament and International Security, SIPRI (Stockholm International Peace Research Institute) (Oxford, Oxford University Press 1997) Appendix 14B. The Parties reached agreement just in time; in Art. IV, para. 3 of Annex 1-B, the Parties had agreed to complete within 180 days after the annex enters into force – that is, by 11 June 1996 – the negotiations on agreed numerical limits on the categories of armaments referred to in Art. IV, para. 2(a) of the GFA.Google Scholar

8. See Phelan, D., ‘The Agreement on Subregional Arms Control of the “Dayton Agreement” ’, in 19 Disarmament, A Periodic Review by the United Nations (1996) No. 2, p. 98.Google Scholar

9. They are: the Protocol on Reduction; the Protocol on Procedures Governing the Reclassification of Specific Models or Versions of Combat-Capable Trainer Aircraft into Unarmed Trainer Aircraft; the Protocol on Exchange of Information and Notifications; the Protocol on Existing Types of Armaments; the Protocol on Inspection; and the Protocol on the Sub-Regional Consultative Commission.

10. The five categories are: battle tanks; armoured combat vehicles; artillery pieces of 75 mm calibre and above; combat aircraft and attack helicopters. All categories taken together are usually referred to as the ‘Agreement Limited Equipment’ (ALE).

11. Phelan, loc. cit. no. 8, p. 99. Art. IV, para. 3 of Annex 1-B of the GFA provides: ‘… the following limits shall apply, according to a ratio of 5:2:2 based on the approximate ratio of populations of the Parties …’ (in case the Parties had not reached agreement before 11 June 1996).

12. See Art. IV, para. 3 of Annex 1-B of the GFA.

13. See SIPRI Yearbook 1998; Armaments, Disarmament, and International Security, SIPRI (Stockholm International Peace Research Institute) (Oxford, Oxford University Press 1998) p. 129.Google Scholar

14. E.g., the ceilings of battle tanks are the following: 1025 for the Federal Republic of Yugoslavia; 410 for the Republic of Croatia; 410 for Bosnia-Herzegovina, of which 273 for the Federation of Bosnia and Herzegovina and 137 for the Republika Srpska. See Art. IV, para. 3 of the Agreement.

15. See Art. II, paras. 3–17 and Art. III of the Agreement.

16. See Arts. V (on means of reduction and time-tables), VI (on export) and VII (on conditions for removal from service by decommissioning) of the Agreement.

17. As provided by the Protocol on Reduction. See Phelan, loc. cit. n. 8, p. 100.

18. The Agreement entered into force upon signature. See Phelan, loc. cit. n. 8, p. 102, and SIPRI Yearbook (1997) p. 485.

19. Art. XII, para. 2. A Party intending to withdraw shall give notice of its decision to do so 150 days prior to its intended withdrawal. This notice shall be in writing and shall include a statement of the extraordinary events that the party intending to withdraw regards as having jeopardised its interests.

20. Almost all arms control agreements that have been concluded over the years contain more or less elaborate supervisory mechanisms. Especially very recent arms control treaties, such as the Chemical Weapons Convention (CWC) and the Comprehensive Test Ban Treaty (CTBT) are characterised by comprehensive supervisory mechanisms. See infra 3.2.

21. The former Yugoslavia was considered a ‘subregion’ of the Balkan region, and, accordingly, the Agreement is ‘sub-regional’. See S1PRI Yearbook (1998) p. 517, fn. 58.

22. This is a recent definition, by McCausland, J.D., ‘Conventional Arms Control and European security’, IISS' Adelphi Paper 301 (1996), p. 4.Google Scholar Other examples of a definition of arms control include the following: ‘all measures, directly related to military forces, adopted by governments to contain the costs and harmful consequences of the continued existence of arms (their own and others), within the overall objective of sustaining and enhancing their security.’ This definition appears in Morgan, P.M., ‘On Strategic Arms Control and International Security’, in Kolodziej, E.A. and Morgan, P.M., eds., Security and Arms Control, Vol. 2: A Guide to International Policy-making (New York, Greenwood Press 1989) p. 301. Morgan also mentions (p. 300) the functional definition by Schelling and Halparin (1985), who define arms control as: ‘All the forms of military co-operation between potential enemies in the interest of reducing the likelihood of war, its scope and violence if it occurs, and the political and economic costs of being prepared for it.’Google Scholar

23. See McCausland, loc. cit. n. 22, p. 5. See also Morgan, op. cit. n. 22, p. 300, and see Advisory Council on International Affairs, ‘Conventional Arms Control: Urgent Need, Limited Opportunities’, No. 2, The Hague, April 1998, pp. 7–8.

24. See Nicaragua case (Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America)), ICJ Rep. (1986) p. 135, para. 269. See also the PCIJ in the Lotus case (PCIJ, Ser. A, No. 10, p. 18), which observed that ‘restrictions upon the independence of States … cannot be presumed.’ See also G. Lysén, ‘The International Regulation of Armaments: the Law of Disarmament’ (Uppsala, Iustus 1990), according to whom it cannot be upheld to ‘conclude that the Charter obliges members to engage in disarmament negotiations’ (p. 82).

25. See Art. VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and see International Court of Justice (Advisory Opinion on the Legality of the threat or use of nuclear weapons), 8 July 1996, Decision (F): ‘There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.’ The Court refers (in paras. 102–103) to SC Res. 984 (1995), 11 April 1995 and to the Final Document of the Review and Extension Conference of the Parties to the NPT (17 April -12 May 1995). See 35 ILM (1996) pp. 830–831. A reference to GCD can, inter alia, also be found in the preamble to the 1963 Limited (or Partial) Test Ban Treaty, in the Final Act of the CSCE of 1975 and the ‘Joint Statement of Agreed Principles by the USA and the USSR for Disarmament Negotiations’ (Zorin/McCloy Statement) of 30 September 1961.

26. See, e.g., Dahlitz, J. and Dicke, D., The International Law of Arms Control and Disarmament; Proceedings of the Symposium, Geneva, 28 February-2 March 1991 (New York, United Nations 1991). See also Lysén, op. cit. n. 24, who proposes to name this body of law ‘the Law of Disarmament’ (p. 222).Google Scholar

27. See also the definition of the law of arms control provided by Myjer, E.P.J., ‘Supervisory mechanisms and dispute settlement’, in Dahlitz, J., ed., Avoidance and Settlement of Arms Control Disputes (New York, United Nations 1994) p. 151: ‘The law of Arms Control is that part of Public International Law that deals both with the restraints internationally exercised upon the use of military force (in general) and on the use and/or possession of armaments (in particular), whether in respect of the level of armaments, their character or deployment, and with the applicable supervisory mechanisms.’Google Scholar

28. For a comparable view, see Goldblat, J., Arms Control, A Guide to Negotiations and Agreements (London, Sage 1994) p. 3.Google Scholar

29. Compare Art. 26 of the 1969 Vienna Convention on the Law of Treaties (pacta servanda sunt).

30. Depending on the kind of supervisory mechanism embodied in the treaty (See infra 3.2), other legal consequences may result from a treaty violation as well, such as a legally binding obligation to enter into negotiations with other Parties or follow prescribed procedures in order to settle disputes.

31. See, e.g., the relevant provisions of the Chemical Weapons Convention (CWC), which contains an obligation for the States Parties to make declarations with respect to their chemical weapons and their production facilities (Art. III; ‘exchange of information’) and which contains procedures for consultations, co-operation and fact-finding through reports and on-site inspections (Art. IX; ‘verification’) and which has its own dispute settlement procedures (Art. XIV; ‘settlement of disputes’).

32. See McCausland, loc. cit. n. 22, p. 61.

33. See, e.g., the establishment of the Organisation for the Prohibition of Chemical Weapons (OPCW) as the implementing body of the CWC (which entered into force 29 April 1997) and the Comprehensive Test Ban Treaty Organisation (CTBTO) for implementing the Comprehensive Test Ban Treaty (CTBT; not yet in force).

34. The IAEA is the implementing body under the Non-Proliferation Treaty (NPT). The OPCW and CTBTO referred to in the previous footnote are genuine international organisations as well.

35. See infra 4.3. Most arms control agreements, especially the bilateral agreements between the USA and the Russian Federation, establish this kind of consultative body, without international legal personality and organs of its own, but with the purpose of institutionalising the – otherwise completely informal – consultations which will take place between the Parties. See, e.g., Art. XIII of the Treaty between the USA and the USSR on the limitation of Anti-Ballistic Missile Systems (ABM Treaty; Moscow, 26 May 1972), pursuant to which a Standing Consultative Commission was promptly established.

36. Schear, J.A., ‘Compliance Diplomacy in a Multilateral setting’, in Krepon, M. and Umberger, M., eds., Verification and Compliance: A Problem-Solving Approach (Cambridge, Mass., Balinger 1988) p. 279,Google Scholar cited in Akçapar, B., The International Law of Conventional Arms Control in Europe (Baden-Baden, Nomos Verlag 1996) p. 215.Google Scholar

37. See Art. I of Annex 1-B (Agreement on Regional Stabilisation).

38. These considerations can be found in the preamble to the Agreement.

39. See Art. IV, section I, para. 1 of the Agreement.

40. See Art. II, para. 17 of the Agreement. Army Infantry Fighting Vehicles (AIFV's) assigned to peacetime internal security forces, not capable of ground combat against an external enemy, are not formally limited by the Agreement, but the Parties agreed on maximum numbers for AIFV's to avoid circumvention of the provisions of the Agreement (Art. XI).

41. The objectives of the Sub-Regional Arms Control Agreement also fit quite well in the Confidence- and Security-Building context of the OSCE, which, inter alia, seeks to reduce the risk of surprise attack, remove disparities prejudicial to security and establish lower force levels for conventional armaments and strengthen stability throughout Europe. See McCausland, loc. cit. n. 22, p. 3. See also OSCE/FSC document, ‘A Framework for Arms Control’, Lisbon 3 December 1996, para. 8, which describes as a negotiating principle of arms control: ‘Sufficiency. Arms control regimes should contain measures designed to ensure that each participating State will maintain only such military capabilities as are commensurate with legitimate individual or collective security needs, and will not attempt to impose military domination over any other participating State.’ (Text reproduced in Idds' Arms Control Reporter 402.D.111 (1–97)).

42. See Art. I, para. 4: ‘This Agreement incorporates the Protocols …’ (a list of the six Protocols follows). ‘Each of these documents constitutes an integral part of this Agreement.’

43. See Arts. VIII and IX of the Agreement. See also Art. VI for inspections relating to export of armaments.

44. See, e.g., OSCE info/facts, ‘The Agreement on Sub-Regional Arms Control-Achieving Limitations on Armaments’, 16 October 1997, OSCE Press Release No. 38/98 (19 June 1998), OSCE Newsletter, Vol. 5, No. 9 (September 1998), p. 9.

45. See Art. X, paras. 1–2. The Parties agreed that the Personal Representative of the OSCE Chairman-in-office would chair the meetings of the Commission in 1996. See Phelan, loc. cit. n. 8, p. 102.

46. This is in line with OSCE tradition; all OSCE bodies make decisions by consensus. See Idds' Arms Control Reporter 402.A.3 (2–97).

47. Quite important, for example, was the decision of the Consultative Commission in January 1997 on a common interpretation on how to apply the Article III-counting rules of the Agreement. As a result of this decision, the Parties recalculated their reduction liabilities and provided corrected information on their holdings. See OSCE info/facts, ‘The Agreement on Sub-Regional Arms Control-Achieving limitations on Armaments’, 16 October 1997 and see Idds' Arms Control Reporter B-Bosnia.4 (5–97).

48. See Netherlands Helsinki Committee (NHC) Working Group, ‘The OSCE and the Arms Control Process’, in 8 Helsinki Monitor (1997) No. 4, p. 9.Google Scholar

49. The NHC Working Group mentions the intention to negotiate a START III Treaty, and in the field of conventional arms control points at the recent revision of the CFE Treaty as an example of this further refinement. Idem, p. 9.

50. Compare Sur, S. and Crawford, A., ‘Introduction’, in Sur, S., ed., Verification of Disarmament or Limitation of Armaments: Instruments, Negotiations, Proposals (New York, United Nations 1992) p. 1: ‘Traditional [arms control] agreements … are based on a predominantly military and strategic approach which is geared towards maintaining and stabilising established balances.’Google Scholar

51. Compare McCausland, loc. cit. n. 22, p. 4.

52. The Republika Srpska is economically miserable, military deficient, and has for a long time been riven by narrow-minded political infighting among a small group of leaders. In the Federation effective action is still largely funnelled through separate Bosnian and Croat channels, notwithstanding the existence of a formal Federation government. See IISS' Strategic Survey 1996/97 (Oxford, Oxford University Press 1997) pp. 139–141.Google Scholar

53. See IISS' Strategic Survey 1996/97, pp. 138–141.

54. The arms control measures agreed to by the Federation of Bosnia and Herzegovina and the Republika Srpska within the State of Bosnia-Herzegovina cannot be considered to relate to an ‘internal’ situation in the traditional sense of Art. 2(7) of the UN Charter (‘matters within domestic jurisdiction’). However, if hostilities break out again in Bosnia-Herzegovina, the warring factions could consider this to be an internal situation, a civil war (compare the situation in Kosovo in March 1998).

It can be questioned whether the UN could take action in a more effective way than it did in 1992. For, UN Peacekeeping can still only take place with the consent of the government of the state concerned. If such government perceives new hostilities as an internal situation, it will not consent to the stationing of a UN Peacekeeping force on its territory.

55. See, e.g., the 1919 Versailles Peace Treaty and the post-WWII Peace Treaties with Austria, Bulgaria, Hungary, Finland, Italy, Romania and Japan.

56. No peace treaty had been concluded previously; the case of Iraq differs from the cases of Austria and others in that in Iraq not the victor-states imposed the arms control regime, but the United Nations Security Council. See SC Res. 687 (1991) et seq.

57. Although the warring factions ultimately signed the peace agreement on a voluntary basis, one would not be far of the mark in asserting that the arms control measures are an example of compulsory arms control. See Advisory Council on International Affairs, supra n. 23, p. 47.

58. Compare McCausland, loc. cit. n. 22, p. 57.

59. As a starting point it can be maintained that states will only be prepared to enter into arms control agreements that entail obligations which have identical or nearly identical consequences for all the Parties to the agreement.

60. See Phelan, loc. cit. n. 8, p. 102.

61. See SIPRI Yearbook (1997) p. 488, and IISS' Strategic Survey 1996/97, p. 134.

62. On 15 March 1996, the ‘train and equip’ Conference opened in Ankara, Turkey, under US and Turkish sponsorship, one day after the small-arms embargo on Bosnia and Herzegovina was lifted by the UN Security Council. The United States pledged US$ 100m for the purpose of assisting in training and re-equipping Croat-Muslim federation forces, and sought an additional US$ 400m, primarily from moderate Arab States. Brunei, Kuwait, Malaysia, Saudi Arabia, and the United Arab Emirates pledged US$ 140m to fund the programme and the purchase of additional military equipment. See McCausland, loc. cit. n. 22, p. 58 and SIPRI Yearbook (1997) pp. 485–488.

63. Comprehensive security is indivisible, which implies that an increase in security for some participating states should not be detrimental to the security of other participating states. Security should thus be an asset of equality among the collectivity of participating States. See NHC Working Group, loc. cit. n. 48, p. 6.

64. See IISS' Strategic Survey 1997/98 (Oxford, Oxford University Press 1998) p. 129.Google Scholar

65. Compare J.M.O. Sharp, ‘Dayton Report Card’, in International Security, Winter 1997/98, p. 116.

66. See in this respect, e.g., Jovanovic, V., ‘The Status of the Federal Republic of Yugoslavia in the United Nations’, in 21 Fordham International Law Journal (1998) pp. 1719–1737.Google Scholar

67. See panel ‘Yugoslavia’, in ‘Are International Organisations Doing Their Job?’, ASIL Proceedings of the 90th Annual Meeting, Washington DC, 27–30 March 1996, p. 471.

68. The security situation in Europe after the Cold War has demonstrated a tendency of multilateralisation and institution-building. The most important change has resulted in the decision to enlarge NATO. The OSCE has not been able to play a truly influential role in the discussions surrounding NATO enlargement.

69. OSCE/FSC document, ‘A Framework for Arms Control’, Lisbon 3 December 1996, para. 1. Co-operative security is a method which facilitates the achievement of the objective of comprehensive security. Co-operative security is aimed at the prevention and reduction of security threats and is designed to prevent aggression. Comprehensive security in its turn embodies the presumption of a direct relationship between peace, stability and economic development on the one hand, and the development of democratic institutions, the rule of law, respect for human rights and the rights of minority groups and the development of a market economy on the other hand. See NHC Working Group, loc. cit. n. 48, p. 6.

70. ‘A Framework for Arms Control’, Lisbon 3 December 1996, para. 3.

71. Compare Owen, Lord, ‘The limits of peace enforcement’, in 42 Netherlands International Law Review (1995) pp. 249–258.CrossRefGoogle Scholar

72. Art. XIV of the Agreement provides: ‘The Chairman of the Sub-Regional Consultative Commission shall convene a Review Conference on June 11, 1998. After that the Parties shall decide to hold Review Conferences regularly, at least once every second year.’

73. See OSCE Press Release No. 38/98 (19 June 1998), ‘Implementation Review Conference on Art. IV (Annex 1-B) of Dayton Accords a success’. The OSCE announced that as of the end of the reduction period a total of 6,580 weapons, including over 700 tanks, 80 ACVs, more than 5,700 pieces of artillery and 60 combat aircraft had been destroyed by the former warring Parties, with the Federation and the Republika Srpska each having destroyed roughly one-third of the total.

74. A Personal Representative of the OSCE Chairman-in-office has been appointed to assist the Parties with implementation of the Agreement. This Personal Representative has assembled a staff of personnel seconded by OSCE states, including a Special Advisor on arms control, a Verification Coordinator, Verification Planning and Operations Officers, Data Analysts, and a Reductions Coordinator and his assistant. Assistance in the execution of the inspection regime, which has been provided by 18 states, and in the reduction of armaments, which has been provided by 10 states, included financial support, assistants for inspections, technical experts for destruction activities, and equipment to effect that destruction. See OSCE info/facts, supra n. 44 and SIPRI Yearbook (1998) p. 520.

75. See Advisory Council on International Affairs, supra n. 23, p. 48.

76. See OSCE info/facts, supra n. 44.

77. The government of Bosnia and Herzegovina pledged conditional support for the Republika Srpska to do so in November 1997. See SIPRI Yearbook (1998) p. 523.

78. See IISS' Strategic Survey 1996/97, p. 134.

79. See Idds' Arms Control Reporter 402.B.351 (1–97) and 402.B-Bosnia.6 (7–97). See also SIPRI Yearbook (1997) p. 491 and SIPRI Yearbook (1998) p. 518.

80. See SIPRI Yearbook (1997) p. 489. Other examples can be provided. In October 1996, it was reported that all sides in the former Yugoslavia had larger stocks of artillery and other weapons than they had reported and had not started to dismantle their surplus arms under the agreement. A NATO official said that all Parties have been ‘economical with the truth’. Estimates for weapons holdings continued to vary widely. A senior foreign military monitor is reported to have said: ‘Everyone is reducing, more or less, from the numbers they declared they have. But no one knows what the real numbers are, either the number of weapons in the inspection sites, or the ones that are hidden.’ See Idds' Arms Control Reporter, 402.B.350 (1–97) and 402.B-Bosnia.5 (7–97). McCausland, loc. cit. n. 22, p. 65, cites a Croatian representative, who observed that ‘All parties have failed to report their true holdings, consequently, why should we make an issue of it here?’, and adds that ‘sadly such cynicism could be indicative of the character applied to Balkan arms control.’

81. Twenty inspections were blocked for several months and resumed in early 1997. See OSCE info/facts, supra n. 44. Inspection rights have eventually been granted to the central government of Bosnia and Herzegovina, see Idds' Arms Control Reporter, 402.B-Bosnia.3 (5–97).

82. The data provided by SFOR differed substantially from those provided by the Parties in the Sub-Regional Consultative Commission. See SIPRI Yearbook (1998) p. 517.

83. OSCE/FSC document, ‘A Framework for Arms Control’, Lisbon 3 December 1996, para. 1. The Framework for Arms Control has been developed by the Forum for Security Co-operation (FSC), a part of the OSCE, which has been negotiating CSBM's in Vienna since 1992. See Idds' Arms Control Reporter 402.A.1 (2–97).

84. Within the OSCE framework CSBM's may sometimes be referred to as ‘arms control measures’, but it should be kept in mind that they in fact do not place legal limits on the freedom of behaviour of (governments of) states with regard to their national armaments. CSBM's create obligations to provide information and to report on movements of troops and to allow inspections in order to verify the adequacy of the information provided and the reports made. They do not, however, set legally binding norms restricting, quantitatively or qualitatively, e.g., the production, possession or use of certain categories of arms. Compare also, e.g., NHC Working Group, loc. cit. n. 48, p. 20: ‘Arms Control Agreements differ from military CSBM's in their format: arms control agreements usually take the form of a Treaty, whereas CSBM's are mostly laid down in politically binding documents.’

85. In arms control literature, it has become traditional to cite F.Ch. Iklé, ‘After detection – what?’ (in Foreign Affairs, January 1961, pp. 208–220) as a concise formulation of the problem of follow-up after it has been established that a Party committed a violation of an arms control agreement. See Akçapar, B., The International Law of Conventional Arms Control in Europe (Baden-Baden, Nomos Verlagsgesellschaft 1996) p. 216.Google Scholar

86. Compare in this respect the ‘Lisbon Declaration on a Common and Comprehensive Security Model for Europe for the Twenty-first Century’, Lisbon 3 December 1996, para. 10: ‘In exceptional circumstances the participating States may jointly decide to refer a matter to the United Nations Security Council on behalf of the OSCE whenever, in their judgement, action by the Security Council may be required under the relevant provisions of Chapter VII of the Charter of the United Nations.’

87. Hence, there would be no point in the Security Council authorising the OSCE to use force as the ultimate means to enforce compliance (like it has done with regard to IFOR in Resolution 1031 (1995), para. 5 and, on other occasions, with regard to individual states in their capacity as UN Members).

88. In the worst case, it could trigger an arms race in the Balkans, involving not only the Yugoslav successor states but also neighbouring countries, thus undermining the achievements of the CFE Treaty.

89. In this respect, it can be pointed at the OSCE's plans for a Regional Arms Control Agreement in accordance with Art. V of Annex 1-B of the GFA, and at NATO's recent decision to maintain a 30,000 troop Stabilisation Force in Bosnia-Herzegovina. From this, it appears the international community has chosen to stay military engaged for years (or even decades) rather than leaving the Bosnians to their own devices at the risk of violence erupting again.