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ABSTRACT
A state seeking to participate in a mission to eliminate weapons of mass destruction (WMD) in another state must ensure compliance with relevant domestic and international laws. This article explores the legal aspects of WMD elimination contingencies, which could take place either in the absence of a United Nations Security Council resolution or within such a context. The author focuses, in large part, on chemical weapons elimination, such as the recent endeavor in Syria, which presented the most complicated and novel legal issues associated with WMD elimination in the recent past. The article concludes by offering lessons to be considered in planning future WMD elimination missions.
Notes
1. “The provisions of this Article and the detailed procedures for its implementation shall apply to all CW owned or possessed by a State Party, or that are located in any place under its jurisdiction or control … [and] “[e]ach State Party shall destroy all CW specified in paragraph 1 pursuant to the Verification Annex and in accordance with the agreed rate and sequence of destruction.” Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (CWC), April 29, 1997, Article IV(1),(6).
“Each State Party undertakes “to destroy, or to divert to peaceful purposes, as soon as possible … all agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, which are in its possession or under its jurisdiction or control.” The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (“BWC”), March 26, 1975, Article II.
2. The term “weapons capable of mass destruction,” first appeared in the very first resolution passed by the United Nations (UN) General Assembly in 1946. See United Nations (UN) General Assembly Resolution 1(I), “Establishment of a Commission to Deal with the Problem Raised by the Discovery of Atomic Energy,” January 24, 1946. By 1948, an alternate form, “weapons of mass destruction,” became the preferred usage and “disarmament diplomacy has relied on that definition ever since.” W. Seth Carus, “Defining ‘Weapons of Mass Destruction’,” Center for the Study of Weapons of Mass Destruction Occasional Paper, No. 8 National Defense University Press Washington, DC, January 2012, p. 5.
3. Commission on Conventional Armaments (CCA), UN document S/C.3/32/Rev.1, August 18, 1948, <https://documents-dds-ny.un.org/doc/UNDOC/DER/NL4/835/52/PDF/NL483552.pdf?OpenElement>. See also Carus, “Defining ‘Weapons of Mass Destruction’,” p. 5.
4. This article does not discuss radiological weapons elimination operations because there is no international disarmament treaty that defines the legal obligations or constraints related to the elimination of radiological weapons.
5. CWC, Article I, paragraph 1 (a), emphasis added.
6. Vienna Convention on the Law of Treaties (VCLT), May 23, 1969, Article 31.
7. Although elements such as the preparatory work of the treaty are not included within the general rules of treaty interpretation under Article 31 of the VCLT, such materials are considered supplementary means of interpretation under Article 32. VCLT, Article 32.
8. Chemical Weapons Working Papers, 1983-1985 Sessions, CD/439.
9. Ibid.
10. Ibid.
11. Chemical Weapons Working Papers, 1983-1985 Sessions, CD/500.
12. Convention on Cluster Munitions, August 1, 2010, Article 1.
13. Ibid, Article 3. See also Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction in the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction, March 1, 1999, Article 1: each State Party undertakes “never under any circumstances: (a) to use anti-personnel mines; [or] (b) to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines.” This general prohibition also closely tracks the general prohibition contained in the CWC for banned items.
14. The Geneva Protocol prohibiting chemical and “bacteriological” methods of warfare has banned their use in war since 1925, and it is widely accepted that such prohibition of use constitutes a rule of customary international law. See also Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, March 26, 1975, Articles I and III, <www.opbw.org/convention/conv.html>.
15. Treaty on the Non-Proliferation of Nuclear Weapons (NPT), March 5, 1970, Articles I and II.
16. CWC, Article I, paragraph 2. Also, the Verification Annex of the CWC includes extensive requirements for how the CW destruction must be carried out and what verification procedures must be followed, including coordination with and inspection by the OPCW.
17. CWC, Article IV(4); See also CWC Article IV(5): “each State Party shall provide access to any CW destruction facilities and their storage areas, that it owns or possesses, or that are located in any place under its jurisdiction or control, for the purpose of systematic verification through on-site inspection and monitoring with on-site instruments.”
18. CWC, Verification Annex Part IV(A), paragraph C(12).
19. CWC, Article 1, paragraph 1(d)).
20. The transfer and acquisition prohibitions may also affect the ability of state parties to take samples from the possessor state's CW stockpile if those state parties seek to transfer samples outside of the possessor state, or if state parties seek to assist others in such transfers.
21. BWC, Article 3.
22. Paragraph 6 of CWC, Verification Annex, Part IV(A) states: “The general plan for destruction of CW submitted pursuant to Article III, paragraph 1(a)(v), shall provide an overview of the entire national CW destruction programme of the State Party and information on the efforts of the State Party to fulfil the destruction requirements contained in this Convention. The plan shall specify:
A general schedule for destruction, giving types and approximate quantities of CW planned to be destroyed in each annual destruction period for each existing CW destruction facility and, if possible, for each planned CW destruction facility;
The number of CW destruction facilities existing or planned to be operated over the destruction period;
For each existing or planned CW destruction facility:
Name and location; and
The types and approximate quantities of CW, and the type (for example, nerve agent or blister agent) and approximate quantity of chemical fill, to be destroyed;
The plans and programmes for training personnel for the operation of destruction facilities;
The national standards for safety and emissions that the destruction facilities must satisfy;
Information on the development of new methods for destruction of CW and on the improvement of existing methods;
The cost estimates for destroying the CW; and
Any issues which could adversely impact on the national destruction programme.”
23. The International Atomic Energy Agency (IAEA) was established in 1957 “to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world” and to ensure that its assistance is not used to military purposes. See IAEA Statute, October 21, 1956, Article II. In order to accomplish these goals, the agency engages in a host of activities, including: acting as an intermediary for securing the performance of services or the supplying of materials, equipment or facilities between two member states; fostering the exchange of scientific and technical information by scientists and experts on peaceful uses of nuclear energy; setting standards of safety for protection of health; acquiring or establishing facilities, plants, and equipment; and “to establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose.” Ibid, Article III(a). The NPT requires each non-nuclear-weapon state to negotiate and conclude with the IAEA bilateral or multilateral agreements on safeguards to verify the fulfillment of its obligations and to prevent the diversion of nuclear materials from peaceful uses to the development of nuclear weapons.
24. De minimis is the legal term indicating the subject is considered too trivial to merit full consideration. “Old chemical weapons” are defined under the CWC for purposes of determining which state party is responsible for destroying the CW. In short, the possessor state party has responsibility for destroying “old” CW, while an abandoning state has the responsibility for destroying “abandoned” CW.
25. “Chemical and Biological Weapons Status at a Glance,” Arms Control Association, February 2014, <www.armscontrol.org/factsheets/cbwprolif>.
26. In addition, Austria and Germany noted that the prohibition on transfer needed to be understood in the context of the general aims of the CWC, as laid down in its preamble, to act toward “the elimination of all types of weapons of mass destruction” (paragraph 1), “to exclude completely the possibility of the use of CW” (paragraph 6), in order to achieve a “complete and effective destruction” (paragraph 10). The transport of the three shells in this instance thus served to meet the overall purpose of the CWC.
27. In this regard, the Austrian-German paper submitted to the OPCW indicated that “due to the specific circumstances of this case and the small amounts involved, this procedure does not constitute any precedent with regard to the general application of Article I of the CWC.”
28. “Strategic Goal 4: Weapons of Mass Destruction—Performance Results for Performance Goal 2,” Burueau of Resource Management, US State Department, November 2004, <www.state.gov/s/d/rm/rls/perfrpt/2004/html/39014.htm>.
29. Notably, in November 2011 and February 2012, the new Libyan government declared additional quantities of Category 1 and Category 3 CW to the OPCW. The newly declared weapons included several hundred munitions loaded with sulfur mustard agent, together with a few hundred kilograms of sulfur mustard stored in plastic containers. Accordingly, the EC approved a modified plan of destruction. See Chris Schneidmiller, “Libya Sets Schedule for Eliminating Chemical Weapons, Nuclear Threat Initiative, May 31, 2012, <www.nti.org/gsn/article/libya-sets-schedule-for-completing-chemical-weapons-disposal/>. See also in this volume, Patrick Terrell, Katharine Hagen, and Ted A. Ryba, Jr., “Eliminating Libya's WMD Programs: Creating a Cooperative Situation,” pp. 185–96.
30. “Albania the First Country to Destroy All Its Chemical Weapons,” Organisation for the Prohibition of Chemical Weapons, July 12, 2007, <www.opcw.org/news/article/albania-the-first-country-to-destroy-all-its-chemical-weapons/>.
31. Cristina Chuen, “Global CW Assistance,” Nuclear Threat Initiative, June 1, 2005, <www.nti.org/analysis/articles/global-cw-assistance/>.
32. Mary Beth D. Nikitin and Amy F. Woolf, “The Evolution of Cooperative Threat Reduction: Issues for Congress,” Congressional Research Service, June 13, 2014, <www.fas.org/sgp/crs/nuke/R43143.pdf>.
33. Ibid.
34. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, November 13, 1972, Annex 1, para. 10(a) and para. 11.
35. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, March 24, 2006, Article 5, 1(8).
36. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, May 5, 1992.
37. “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Charter of the United Nations, October 24, 1045, Chapter V, Article 25.
38. Defense Policy Division, Policy Planning Bureau, “2014 Defense White Paper,” MND 02-748-6237, Republic of Korea Ministry of National Defense, <http://www.mnd.go.kr/user/mnd_eng/upload/pblictn/PBLICTNEBOOK_201506161156164570.pdf>.
39. James D. Fry, “Dionysian Disarmament: Security Council WMD Coercive Disarmament Measures and Their Legal Implications,” Michigan Journal of International Law 29 (2008) p. 242.
40. “Letter dated 11 October 2013 from the President of the Security Council addressed to the Secretary-General,” S/2013/603, October 11, 2013, <www.un.org/en/ga/search/view_doc.asp?symbol=S/2013/603>.
41. Nikitin and Woolf, “The Evolution of Cooperative Threat Reduction.”
42. The Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (1998).
43. The USA Patriot Act of 2001 amended the prohibitions of the BWTA to include the following: “Whoever knowingly violates this section shall be fined as provided in this title, imprisoned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity.” Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. 107-56 (October 26, 2001).
44. The situation is more complicated for treaty signatory non-parties. Article 18 of the Vienna Convention on the Law of Treaties obligates treaty signatory non-parties to refrain from acts that would defeat the object and purpose of the treaty. The precise contours of states' obligations will differ depending on the agreement and are subject to a complicated case-by-case analysis to determine the object and purpose of a particular agreement and whether a state took action to defeat such an object and purpose.