ATENCIÓN A LA DIVERSIDAD

U n d er the term s of its m andate, the comm ission has no decisional or ju rid ical a u th o rity w ith respect to w h eth er 'su p rem e interests' are involved in any dispute concerning the treaties to which the SCC has resp o n sib ilitie s,37 being purely consultative in its function. Thus, as a co n su ltativ e forum , the SCC lacks p o w er or a u th o rity to "enforce eith er com pliance w ith treaties or joint interpretations of agreem ents reach ed th ro u g h the SCC."38 In any given d isp u te over compliance issu es w ith in the com petence of the SCC, the C om m ission is not em pow ered to form ulate a juridical judgem ent as to w hich Party may be at fault. N or is the SCC em pow ered to form ulate m eans of ending or correcting any non-conform ing behaviour - in this sense the SCC does n o t have a 'policing' role. N either is the SCC responsible for resolving specific ambiguities. Its Com missioners' brief is perhaps best described, d ep en d in g on the instructions received, as to "act as representatives of th e ir resp ectiv e G overnm ents," an d m ay "intervene as p lain tiff, defendant, or negotiator." (Calvo-Goller and Calvo:1987/302).

Its initial in ten tio n (since b ro ad en ed slightly by the provisions of A rticle XVII of the SALT II Treaty) w as m erely to look into the questions indicated by the seven sub-paragraphs of Article XIII of the ABM T reaty.39 This w as m irrored in the corresponding Article VI of th e In te rim A g re e m e n t L im itin g S tra te g ic O ffe n siv e A rm s. Subsequently, its functions were broadened to include: responsibility

37 See Ambassador Gerard C. Smith. 38 Duffy, Op Cit 1988/165

for review in g the ABM Treaty40 (1977 &1982); to promote the obligations and implementation of the SALT II Treaty (under Article XVII of that treaty); to maintain an agreed database on the numbers of strategic offensive weapons subject to the limitations of the SALT II treaty.41

In the Report of Secretary of State William Rogers to President Nixon on the SALT I Agreements, 10 June 1972, Rogers outlined the functions of the SCC.42 Besides m onitoring compliance issues between the

40 Pursuant to Article XIV, sub-paragraph 2, of the ABM Treaty which states:

"Five years after entry into force of this Treaty, and at five year intervals thereafter, the Parties shall together conduct a review of this Treaty."

Although, not specifying the SCC to undertake this responsibility, the Article does permit the SCC to do so.

41 See D. Caldwell, in Potter,W.C. Op Cit. p.222-223.

42 See: Report of Secretary of State William Rogers to President Nixon on the SALT I Agreements, 10 June 1972. Department of State Bulletin 3, July, 1972 pp.3-11. Labrie (Op C it) notes that Secretary Rogers' report was submitted to the Senate and House of Representatives, with the texts of the ABM treaty and the Interim Report, on 13 June 1972.

(In Labrie,Op Cit p.60) Article XIII provides that the Parties shall establish promptly a Standing Consultative Commission (hereafter referred to as the Commission) to promote the objectives and to facilitate the implementation of the ABM Treaty. The Parties have further agreed to use the Commission to promote the objectives and implementation of the Interim Agreement. (See Article VI of the Interim Agreement.) The Commission will provide a consulting framework within which the Parties may consider various matters relating to the Treaty and the Interim Agreement. The Parties may also consider these matters in other channels.

A principal function of the Commission will be to consider questions of compliance with the obligations assumed under this Treaty and the Interim Agreement and also related situations which may be considered ambiguous. Each Party may voluntarily provide through the Commission information it considers necessary to assure confidence in compliance based on information gathered by national technical means of verification and the other Party could provide information to clarify the matter.

Attention was called above to the provisions in Article XII prohibiting intentional interference with national technical means of verification operating in accordance with its provisions. The Commission is charged by Article XIII with the responsibility to consider any questions of interference with such means. The Commission may also

Parties, the Commission would be charged with a number of other responsibilities. These responsibilities fall broadly into the areas of: i) providing a consultative framework,

ii) considering questions of interference with national technical means of verification,

iii) considering the general strategic situation and propose ways of improving the viability of the treaty including the provision of agreed interpretations,

iv) negotiation of procedures and dates for implementing Article VIII concerning the destruction or dismantling of ABM systems or their components.

The expansion of the Commission's role under the provisions of Article XVII of the SALT II Treaty devolves partly through the added complexity and extent of that Agreement. The SALT II Treaty introduces the complexities of qualitative and quantitative provisions on weapon systems, in addition to the quantitative scope of the ABM Treaty and the Interim Agreement.

consider questions of concealment impeding verification by national means. The Commission may also consider changes in the general strategic situation which have a bearing on the provisions of the Treaty. Related to this is the Commission's authority to consider proposals to further increase the viability of the Treaty-such as agreed interpretations after the Treaty has entered into force-and to consider proposals for amendment of the Treaty. (Amendments to the Treaty would have to be ratified pursuant to Articles XIV and XVI.) The Commission may also consider other appropriate measures, not specifically enumerated in Article XIII, aimed at further limiting strategic arms. Finally, through the Commission the Parties are to agree on procedures and dates for the implementation of Article VIII concerning destruction or dismantling of ABM systems or ABM components....

The second paragraph of Article XIII provides for the establishment of regulations for the Commission governing procedures, composition and other relevant matters. Such matters can be worked out early in the follow-on negotiations. Meanwhile, any consultation desired by either side under these Articles can be carried out by the Delegations during such negotiations or, when they are not in session, through other diplomatic channels.

The Commission is intended as a means to facilitate the implementation of the agreements and would not replace follow-on negotiations or use of other diplomatic channels.

The SCC is neither a judicial43 body, nor is its function to monitor44 agreements although monitoring information may be brought in to SCC proceedings45 where appropriate. As Buchheim and Caldwell point out, the chief purpose of the SCC is to provide a consultative forum to which the parties can come in order to clarify ambiguous b e h a v io u rs 46 before they lead to irretrievable breakdown of an agreement.47

Critics of the SALT process in general and of the SCC in particular charge that of the fifteen articles in the ABM Treaty (eight characterised by Senator Humphrey as 'significant'), as of 1980, serious questions have been raised with respect to Soviet compliance with five:

• testing air defence missile and radars in an ABM mode (SA-5 missile and radar testing, 1973-5 and SA-10 radar testing,1979;

• deployment of possible new ABM battle management radars;

• development of rapidly deployable (over months rather than years), possibly mobile new ABM system;

• camouflage of certain ABM R&D;

43 Rowell 127 ^ I b i d 12 7 45 Ibid 127

46 Ambiguous behaviours: activities that may indicate moves towards a treaty