Negotiation of Agreements


Negotiation of Agreements


Since the 1970s, disarmament law has increasingly been developed and regulated in treaties and conventions. “Treaties” and “conventions” are synonyms. Both terms are used for international agreements between two (bilateral) or more (multilateral) states (or international organizations).

Previously, the customs that the states were following in practice in their international relations were the main source of law. In recent decades, states have realized that agreement embodied in writing in treaties and conventions is the best way to codify international case law and establish written international law, and also to create new law in hitherto unregulated or inadequately regulated areas. Besides the advantage of having fixed and formulated rules for the conduct of states, adhering to treaties and conventions makes states legally bound to abide by the rules. In addition, the rules for verifying compliance with the treaties and conventions incorporated in most recent agreements as an integral part of the accords are effective ways of monitoring compliance.

Many disarmament and arms control issues that have not yet been regulated in international agreements are the subject of political declarations, for example the numerous declarations on abolishing nuclear weapons. Such policy statements are typically made by the participants in meetings of international organizations, for example in the resolutions of the United Nations General Assembly. Resolutions adopted by the General Assembly are politically binding statements only, not legally binding international law. They often contain recommendations on establishing a specific legal regime in a particular area. Even in cases when a resolution is adopted by consensus, i.e., without a vote or unanimously, the states participating in the unanimous adoption are not legally bound by the resolution.

Many of the major treaties and conventions in areas other than disarmament and arms control have had, in most cases, a long negotiating history. In several cases, de lege ferenda considerations on how the legal situation should be, or so-called soft law, were first expressed in UN resolutions adopted by the General Assembly’s Legal Committee (Sixth Committee) or in other political declarations not binding under international law. Eventually “soft law” can develop into “hard law” in the form of legally binding treaties or conventions. This is especially the case with General Assembly resolutions that have been adopted unanimously and therefore have a special normative importance. The desired legal situation in areas where there is general international agreement has thus been developed and formulated in treaties and conventions adopted at specially convened treaty conferences. One such example is the United Nations Law of the Sea Conference, which lasted for ten years and resulted in the adoption of the UN Convention on the Law of the Sea in 1982. In other cases, the preparatory work has been carried out in the International Law Commission.

It is a characteristic feature of many disarmament and arms control agreements that the text of the treaties and conventions is not as clear and precise as one could wish. This is partly due to the fact that many of the representatives of the states involved who have negotiated the agreements are in many cases not international lawyers and often do not have special training or experience in drafting treaty texts. In some cases, the definitions have been drafted by military experts who have little regard for clear treaty language. In addition, the content of the treaties is in most cases the result of lengthy negotiations that have resulted in compromises painstakingly drafted to obtain agreement on the text of the draft treaty. Finally, some treaty texts are deliberately unclear or ambiguous in their formulations. This is because it has not been possible to reach agreement on a clear formulation. The negotiators have therefore agreed on a compromise text with “constructive ambiguity.” This allows the parties to have different interpretations of how the wording on controversial issues in the provisions will be understood and what the purpose of the rule is. This is, of course, one of the main weaknesses of many international treaties and conventions.


United Nations Disarmament Commission

Early in the history of the United Nations it became obvious that there was a need for a special negotiating body on disarmament and arms control. In 1947, the Commission for Conventional Armaments was established by the UN Security Council with the same membership as the Council. In 1952, the General Assembly, with resolution 502 (VI), created the United Nations Disarmament Commission (UNDC), also under the Security Council. The UNDC was the successor to the Atomic Energy Commission and the Commission for Conventional Armaments. After having been inactive since 1965, the Disarmament Commission was restored in 1978 as a subsidiary organ of the Assembly at the First Special Session of the UN General Assembly devoted to disarmament. The reactivated UNDC considers and makes recommendations on disarmament and arms control issues. The agenda for the UNDC for 2015 to 2017 includes “Recommendations for achieving the objective of nuclear disarmament and non-proliferation of nuclear weapons” and “Practical confidence-building measures in the field of conventional weapons.” The membership of the Disarmament Commission was expanded in 1958 to include all UN member states. It meets for three weeks every spring at UN Headquarters in New York.

Disarmament Committee