[Cross-posted from The Trench]
On 18 April 2018 the Executive Council of the Organisation for the Prohibition of Chemical Weapons (OPCW) held its 59th meeting, which was wholly dedicated to the assassination attempt with a nerve agent of the Novichok family. The Technical Secretariat presented its classified full ‘Report on Activities Carried out in Support of a Request for Technical Assistance by the United Kingdom of Great Britain and Northern Ireland (Technical Assistance Visit TAV/02/18)’. A summary released by the Technical Secretariat on 12 April, although lacking in detail, stated that:
- Two OPCW designated laboratories confirmed that the three hospitalised individuals had been exposed to a toxic chemical;
- Another two OPCW designated laboratories confirmed the presence of the toxic chemical in environmental samples;
- The results confirmed the UK’s findings relating to the identity of the toxic chemical; and
- The TAV noted the high purity of the agent because of the almost complete absence of impurities.
Russia’s unprecedented revelation of the identity of a designated laboratory in an investigation
Prior to the Executive Council meeting Russia caused an uproar when Foreign Minister Sergei Lavrov publicly identified one of the designated laboratories involved in the analysis of samples (Spiez laboratory, Switzerland). In his address to the Assembly on Foreign and Defence Policy on 14 April, he also confirmed the identification of Substance A-234 (a Novichok agent) and furthermore claimed (from Russian via Google Translate):
Based on the results of the examination, the traces of the toxic chemical BZ and its precursors belonging to the chemical weapons of the second category in accordance with the Convention on the Prohibition of Chemical Weapons are found in the samples. BZ is a nerve agent temporarily disabling a person, psycho-toxic effect is achieved in 30-60 minutes and lasts up to four days.
This recipe was in the arsenal of the US Army, Great Britain and other NATO countries, there were no developments or accumulations of these chemical compounds in the Soviet Union and Russia.
The statement as such contains two errors.
[Cross-posted from The Trench]
A recurring question in the context of the investigation by the Organisation for the Prohibition of Chemical Weapons (OPCW) into the use of chlorine in the attack against Douma on 7 April is whether chlorine is actually a chemical weapon (CW).
The simple answer is ‘yes’ if the chemical element is released as method of warfare, an act of terrorism, or any other deliberate act intended to harm or kill a person or animal.
There are two elements in the Chemical Weapons Convention (CWC) to bear in mind, namely the definition of a CW and the three Schedules (or lists with chemicals), which are annexed to the convention.
Definition of a chemical weapon under the CWC
Most toxic chemical are potentially dual-use. Moreover, the CWC wishes to cover not only yesterday’s and today’s toxic chemicals but also the ones that may be developed in the future. To this end, the CWC uses the so-called General Purpose Criterion (GPC): not the toxic chemical as such is prohibited; however, the purposes to which it may be applied are.
In this context it is useful to know that the treaty’s default condition is prohibition. In other words, all usage of toxic chemicals is prohibited unless for purposes that are not-prohibited (note the negative formulation). The CWC considers only four non-prohibited purposes.
Thus Article II, 1 states:
1. “Chemical Weapons” means the following, together or separately:
(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; […]
Here one can see that any toxic chemical is defined as a CW, except where intended for purposes not prohibited …, in which case the toxic chemical is by definition not a CW and therefore does not fall under the CWC.
Article II, 2 defines ‘toxic chemical’ as
‘Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere’.
In other words, this definition clearly bears on chlorine.
[Cross-posted from The Trench]
Since the assassination attempt on Sergei and Yulia Skripal with a nerve agent now just over one month ago, so much has been written about ‘Novichok’; so much has been opined about what ‘Novichok’ is meant to be (if it exists at all); and so much smoke has been spewed about what the identification of ‘Novichok’ suggests about culprits. This blog posting is the first of several to look into a specific aspect of the discussions concerning Novichok in the hope of clarifying where certain positions come from and what factual knowledge exists about this group of nerve agents.
Facts have been scarce. In fact, as a member of the public with long-time interest in chemical and biological weapons, I know very little about what took place in Salisbury on 4 March. I still have to see the first statement from British authorities—government officials, police, scientists at the Defence Science and Technology Laboratory (DSTL) at Porton Down—in what form the Novichok agent was delivered. Was it a liquid? A solid in powdered form? A binary concoction? Delivered in a gel or ointment? Anything else?
‘Novichok’ as we know the family of nerve agents today was researched, developed, produced and field-tested in sizeable quantities in the Soviet Union and at least during the early years of Russia as an independent state. Little else beyond this basic information given by some of the chemists involved in the armament programme is available. Those researchers are not always in agreement with each other, especially as regards the skill levels required to synthesise the agent.
Meanwhile, government officials from both the United Kingdom and the Russian federation have launched a war of hyperbole. London overstated the nature and quality of evidence from forensic chemistry; Moscow, amid a broad smoke-and-mirrors campaign, used the exaggerations to poke holes in the British narrative. Just like with allegations of chemical weapon (CW) use in Syria, Russia has released a barrage of denials concerning the assassination attempt in the UK through disaffirmation of any involvement, construction of spurious logic and citation of any ‘expert’ willing to entertain conspiracy theories. It furthermore rejects any outcome unfavourable to its world view and questions procedures and methodologies applied by investigative bodies. Moscow, however, never supplies any physical evidence in support of its claims.
Yet, over the din there are two steadfast Russian positions: (1) Russia is not responsible for the Soviet Union’s actions, and (2) CW declarations concern only ‘produced’ toxic chemicals for use in warfare. In the specific context of the CWC, it places the three Schedules central to the prohibitory regime.
[Cross-posted from The Trench]
On 4 April the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW) will meet in a special session. Russia called the extraordinary meeting. It has been a month now since former Russian spy Sergei Skripal and his daughter Yulia had been exposed to a nerve agent in Salisbury. The United Kingdom (UK) government identified it as a member of the ‘Novichok’ family, once researched and developed by the Soviet Union. Russia is believed to have continued the programme at least during the first years after the breakup of the USSR. It has never come clear on the nature of the programme or identified the agents’ characteristics. As no other country has ever been associated with the Novichok family of agents, London’s finger-pointing at Moscow was not difficult.
War of loud words
Since the assassination attempt a war of loud words has erupted. The UK has continued with its investigation and called in the OPCW’s expertise with a view of validating its analyses of the nerve agent. By the latest indications, the results from the OPCW-certified laboratories will not be available before the middle of this month.
Meanwhile, London also launched a diplomatic offensive to isolate Russia internationally (for an overview, see the dedicated UK government web page), which so far has ended with tit-for-tat expulsions of diplomatic staff. The rhetoric strayed off course. The assassination attempt got linked to similar incidents over the past years and decades, Russia’s actions in its near-abroad and Syria, its cyber campaigns against the institutions of Western democracy, and the country’s more assertive stance against Western interests, particularly those of the European Union (EU) and the North Atlantic Treaty Organisation (NATO). And, of course, the post-penultimate British schoolboy’s meme had to be called forth for domestic consumption: a mention of Nazi Germany.
Battle royale for the internet’s heart and minds
The British government’s (quite necessary) quietness about the investigation, the dearth of factual information beyond some generalities, and the distraction-causing verbal digressions into unrelated issue areas presented Russia with an open playing field. It was an opportunity it could not, and did not ignore.
Beyond the stacks of concealing black smoke and initial ridicule spouted by the government-sponsored international media and its diplomatic representatives to the UK, OPCW and EU, Moscow stayed much more focussed on the Skripal case. It was testing messages fast, discarding the ones failing to gain immediate traction and pursuing those that got picked up. Together, they addressed several issues simultaneously to drown out or cast doubt over any possible counterargument. That Russian officials or media contradicted themselves or seemingly confessed to total ignorance about past chemical warfare programmes did not matter. Speed was of the essence to avoid a coherent ripostes.
So, they challenged the notion that Russia was the sole originator of Novichok agents; they denied that there had ever been a Novichok programme; they suggested that the agent came form the British chemical defence laboratories at Porton Down or from similar facilities in other European countries; they questioned the OPCW’s legitimacy in the investigation while embracing the procedures foreseen in the Chemical Weapons Convention (CWC) to discuss the matter; etc. They upbraided the UK government for not releasing details about the nerve agent while the investigation is going on. And then Foreign Minister Sergei Lavrov proffered motive for the British using a Novichok agent against the Skripal family: covering up difficulties over Brexit.
However ludicrous some of the arguments, Moscow ultimately turned the tables on London. Russia now portrays itself as the victim of the attack because the UK was unable to guarantee the safety and security of its citizens, in addition to which it now refuses Russian consular access to Yulia. And exploiting both British silence on the heart of the matter and the waiting period for the OPCW test results, it called for an special session of the OPCW EC after having publicly released two sets of questions (1st set; 2nd set), some of which it could use to initiate the clarification process under CWC Article IX, 2. Quite a few of these questions Moscow has field-tested via its global megaphone. (A subset of questions Russia addressed to the French government too.)
Will Britain’s hand be forced?
How will the EC meeting tomorrow pan out? Difficult to say, but if the debates over Syria’s chemical weapon (CW) use offer any guidance, then the following broad lines may re-establish themselves: the Western countries will decry the violation of the CWC and seek justice; Russia will play out a geopolitical strategy based on nominal pledges of cooperation to influence the votes of members of the Non-Aligned Movement who are wary of being caught up in a new hegemonic struggle between Moscow and Washington.
Russia has definitely laid the groundwork for triggering Article IX, 2. But will it trigger it tomorrow? This is far from certain. Moscow’s core aim may be to place some of the key questions it has already publicised into the formal record, thereby forcing the UK to respond. Any reluctance or avoidance by London would feed a certain narrative, at least until the OPCW submits its own laboratory findings to the UK. That narrative will anticipate those findings; at a minimum it will place the British government under great pressure to release the analyses to other OPCW members, including Russia. That pressure might also compel the British government to follow OPCW procedures rather than pursuing the case through other diplomatic means, in which case Moscow’s gambit may already be anticipating crucial votes further down that path. (For an overview of the Article IX process, see my earlier blog posting Novichok and the Chemical Weapons Convention.)
Remains one question in all this: Where is Washington? в кармане?
[Cross-posted from The Trench]
Assassinations with nerve agents are rare. Very rare. The reason is simple: other means to eliminate a person are simpler and much more effective. The marginal benefit from using even some of the most toxic substances ever made by man is negligible. What is more, the attempt fails often, as Aum Shinrikyo experienced when trying to take out some of the cult’s enemies with VX before the 1995 sarin attack in the Tokyo underground. Last year’s murder of Kim Jong-nam, half-brother of North-Korean leader Kim Jong-un, also involved VX according to Malaysian authorities. However, the real perpetrator behind the two women who rubbed the substance in his face was quickly identified.
The surprise that the assassination attempt on former Russian spy Sergei Skripal and his daughter Yulia in Salisbury, UK on 4 March involved one of the Novichoks was not little. First, this family of nerve agents is relatively unknown. Outside specialised disarmament and HazMat communities few people would have been aware of its existence. Over 100 chemical structures are believed to belong to it, all related yet different. The group of chemical structures does not figure in the Annex on Chemicals of the Chemical Weapons Convention (CWC). Second, the substance was produced in any sizeable quantities in only one single country, the Soviet Union. Third, the required precursor chemicals and the pathways to synthesise the final agents are completely obscure to most of the public.
The UK government has formally accused Russia of the assassination attempt and expelled 23 Russian diplomatic personnel. Moscow vehemently denies the accusal and has retaliated by demanding that a similar number of diplomats leave the country. It furthermore denies ever having developed and produced Novichoks. The incident follows an already bitter stand-off between the West and Russia over Syria’s proven chemical weapon (CW) use that blocks effective UN Security Council action and splits the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW). As the government of Prime Minister Theresa May has formally declared its intention to have the OPCW independently verify its analyses and share it with its international partners, the question is whether and how the international organisation can contribute to resolving the matter.
Ensuring compliance under the CWC
Beyond the CWC’s routine verification process involving declarations, assessments and inspections, Article IX ‘Consultations, Cooperation and Fact-Finding’ foresees procedures to resolve uncertainties about compliance or breaches of the convention. These procedures are consultations, clarification, challenge inspection and investigation of alleged use.
Consultation concerning anomalies
The CWC does not detail what consultations should entail, but views and encourages them together with information exchanges as one of the early (or low-key) diplomatic exchanges among states parties to resolve doubts or ambiguities about compliance.
According to a statement issued by the UK’s Foreign and Commonwealth Office, on 12 March Foreign Secretary Boris Johnson summoned the Russian Ambassador to seek an explanation from the Russian Government. The statement strongly suggests that the step was undertaken under the consultative process foreseen under Article IX. It added that Russia provided no meaningful response.
Clarification of compliance concerns
If in doubt or concerned about compliance, a state party may seek clarification. A state party will address the initial request for clarification to another state party, who must reply within 10 days. Although not stipulated in the convention, a degree of expectation exists that the latter would supply supplementary information (i.e. beyond what is available from, for instance, annual declarations or routine inspections) to address the concern.
In case the reply does not resolve the concern, the requesting state party may call for assistance from the EC, which must use its authority to lend weight to the request, including through forwarding the request within 24 hours. The state party to whom the clarification request is addressed has once again a maximum of 10 days to respond. If the replies still do not satisfy, the requesting state party my next request the EC to obtain further information, in which case it may (not ‘must’) decide to set up a group of experts to examine all available information and reports and submit a factual report. Although the group of experts can draw on previous inspection reports, it is in no position to launch its own inspection procedure.
After either of the two previous steps, the requesting state party may call for a special session of the EC, which then has the decision authority to ‘recommend any measure it deems appropriate to resolve the situation’. Although not stated explicitly in Article IX, those measures would presumably include obtention of further information or persuasion of the targeted state party to resolve the presumed violation in accordance with the CWC. If the requesting state party remains unsatisfied with the response, it may call for a special session of the Conference of States Parties (CSP) 60 days after the submission of the request for clarification to the EC. The CSP is to consider and may take any measure, which, as in the case of the EC, remains unspecified in the convention.
It is important to note that the launch of a clarification procedure does not require the outcome of routine inspections, but inspection reports may trigger additional requests for information. It should also be noted that the procedures described above do not affect the requesting state party’s right to call for a challenge inspection, nor are they affected by the conduct of a challenge inspection.
Challenge of non-compliance
Challenge inspections are the third tool outlined in CWC Article IX. It consists of a short-notice inspection at any site (irrespective of whether it has been declared or not) in a state party. Once the OPCW has authorised the challenge inspection the targeted state party has no right of refusal, but it can invoke the technique of managed access through which OPCW inspectors may be denied access to certain parts of the site. Managed access cannot be implemented in such a way that inspector access to the site as such is denied. However, irrespective of the outcome of the managed access negotiations between representatives of the challenged stated party and the OPCW inspectors, the latter retain full right to interview any staff member of the site (and thus possibly obtain relevant information about the areas to which they have been denied access).
Although a challenge inspection can be requested at any stage of consultation of clarification processes, the CWC encourages states parties to view the tool as an instrument of last resort.
Investigation of alleged use
Part XI of the Verification Annex details the process of investigating the alleged use of CW or the alleged use of riot control agents as a method of warfare. In case the alleged use involves a state not party to the CWC, then the Director-General of the OPCW will closely cooperate with the UN Secretary General.
The procedure is applied (and has been further developed) with respect to the many allegations of chemical warfare in Syria. It is less relevant to the Novichok case.
Pathways to resolving the Novichok matter
How the investigation of the Skripal assassination attempt plays out will largely depend on the next key decisions by the UK government. The OPCW experts travel to the UK under Article VIII, 38(e), which qualifies their activity as a ‘Technical Assistance Visit’ to help with the evaluation of an unscheduled chemical (the Novichock agent) is not listed in any of the three schedules in the Annex on Chemicals). They will likely visit the sites of investigation and collect their own samples (if for no other reason than to validate any laboratory samples they may receive), take all materials and documents related to the forensic investigation back to the Netherlands where the sample will be divided up and sent to two or more designated OPCW laboratories. (The list for 2017 can be consulted here.)
After having received the report, the UK government may opt to pursue the case using its own diplomatic means, possibly together with its allies, or it may decide to invoke one of the procedures outlined above, the most likely one being the clarification process. Given the current level of political rhetoric and the earlier summons of the Russian Ambassador, consultations will have little utility left. To call for a challenge inspection the UK will need to have extraordinarily precise information about the production or storage location (which might be difficult if, for example, forensic analysis points to recent, small-scale synthesis of Novichok or to a chemical structure different from those associated with the Soviet programme).
At present the outcome of any one of the procedures is difficult to foresee. Neither the clarification process nor challenge inspection option have been invoked previously. Moreover, even though the CWC may at first sight seem to suggest a hierarchy among the different procedures in terms of increasing stringency or steps in an escalatory process, each one can be pursued independently. They may also be invoked in succession, or they can run in parallel. One procedure is not necessarily a prerequisite to another one.
Central to the understanding of the procedures is that the OPCW, as an independent international organisation dedicated to overseeing the implementation of the CWC, provides a forum for consultation and cooperation among states parties, also in matters concerning compliance or conflict resolution.
[Cross-posted from The Trench]
In my blog posting of 16 January entitled ‘Palestine: From a “will-be” party to the CWC to a “would-have-been”?’, I described how Palestine submitted its instrument of accession to the Chemical Weapons Convention (CWC) with the UN Secretary-General on 29 December, only to withdraw it on 8 January. Since having achieved the status of ‘UN non-member observer state’ in 2012, Palestine has joined over 50 international agreements, including the Biological and Toxin Weapons Convention, to which it became formally a party on 16 January. The CWC is the only treaty on which it reversed its position.
Retracting an instrument of accession is a highly unusual and the motivation behind the step was unclear. Since the blog posting, still nobody is able to offer even a beginning of an explanation for the step.
A rare step nonetheless
Prof. Masahiko Asada of the Graduate School of Law at Kyoto University responded to the blog posting by pointing out that there are in fact precedents involving the withdrawal of an instrument of ratification before the entry into force of a treaty. He specifically pointed to the 1995 UN Fish Stocks Agreement. Italy and Luxembourg ratified it in 1999 and 2000 respectively. Both countries withdrew their instruments ratification and re-ratified it in 2003 along with other European Union (then still the European Communities) members with declarations.
He also referred me to a publication prepared by the Treaty Section of the UN Office of Legal Affairs, Summary of Practice of the Secretary-General As Depositary of Multilateral Treaties. Section H (p. 47) describes circumstances and gives more examples:
157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty.
158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on 1 January 1959) and then deposited a new instrument with a reservation.
So, while there have been a few withdrawals of instruments of ratification, countries seem to have taken this step (1) when the treaty had not yet entered into force for anybody; and (2) possibly with the intention to re-ratify at a later stage but with the addition of reservations.
Palestine’s action does not seem to fit this practice.
First, none of the treaties in the examples concern international security or weapon control.
Second, Article XXII of the CWC stipulates that ‘The Articles of this Convention shall not be subject to reservations’. In other words, Palestine cannot retract its instrument of accession with a view of re-submitting it with a reservation. It could, however, express some reservations with respect to the annexes to the CWC provided these are not incompatible with the object and purpose of the convention.
Third, the UN Office of Legal Affairs also noted that ‘the withdrawal of instruments is accepted until the entry into force of the corresponding treaty’ (para. 159). The CWC has now been in force for over 20 years.
The UN Office of Legal Affairs primarily assessed the implications of such withdrawal on when a treaty takes legal effect. It did not delve into the question of withdrawal of accession. Yet, it seems to have left the door open for scenarios involving accession or succession (implying that the treaty would already have entered into force) when it referred to ‘instrument of ratification or of a similar nature‘. However, the lack of concrete examples may suggest that UN Secretary-General Guterres’ acceptance of the Palestinian retraction may yet have set a precedent in international legal history.
Answers? Questions! Questions? Answers!
Literally nobody has an explanation for Palestine’s withdrawal of its instrument of accession or an idea what the Palestinian Authority’s next move might be.
Senior staff within the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) were as confounded as anyone else. This puts to rest my benign suggestion that the OPCW might have alerted the UN Secretary-General to possible complications of Palestine joining the CWC without any formal preparations. No such steps or similar types of communication were undertaken.
Representatives from CWC states parties expressed similar surprise. One rumour circulating in The Hague suggested that Egypt had persuaded the Palestinian Authority in Ramallah to withdraw from the treaty. However, as one ambassador from a Western country told me, ‘this is all what it is, a rumour’. Some persons pointed to the prospect of US financial retaliation (which I explained, but discounted in the original blog posting), but nobody heard an American official even suggest such a possibility.
A former Arab ambassador reached out to colleagues and friends in the Middle East. He replied that nobody was able to provide answers to my questions. Palestinians reached out to the Authority and Palestinian diplomats in disarmament capitals, but again the answer was that ‘no one either knows or wants to talk about it’.
No explanation as to why Palestine withdrew its instrument of accession to the CWC is forthcoming at present. The questions raised in my initial blog posting remain open. Particularly vexing is: why the CWC, and not also one of the 54 other treaties that Palestine has joined over the past three years?
I would like to thank Prof. Masahiko Asada for having pointed me to the broader context of withdrawal of instruments of ratification. My great appreciation also goes to research colleagues and present and former diplomats who brought me in contact with relevant personalities and/or have tried to receive answers from relevant policy makers and implementers.
[Cross-posted from The Trench]
Something really remarkable happened in the first two weeks of 2018. On 2 January, quite out of the blue came the notification by UN Secretary-General António Guterres that the State of Palestine had deposited its instrument of accession to the Chemical Weapons Convention (CWC). It was to become the 193rd state party on 28 January, thirty days after having submitted the document (29 December). Indeed, ‘was’. Guterres formally informed UN members on 11 January that Palestine had withdrawn its instrument of accession three days earlier.
States withdrawing from a disarmament or arms control treaty is extremely rare. But it does happen. North Korea, for example, left the Nuclear Non-Proliferation Treaty (NPT) in 2003. However, I do not recall having come across an instrument of accession being withdrawn after its formal deposit. (Internet searches did not yield any results either, although poor selection of search terms might be responsible for that.) The closest is the ‘unsigning’ of treaties (as the USA did with the Rome Statute of the International Criminal Court). In those cases the agreement had not yet entered into force for the country concerned.
Palestine’s initial action on the CWC did not come in isolation. Today, 16 January 2018, the Implementation Support Unit announced that Palestine had become the 180th state party to the Biological and Toxin Weapons Convention (BTWC).
Out of the blue
I have been expecting Palestine’s accession to the CWC since it attempted to attend 2014 CWC Conference of States Parties (CSP) as a non-State Party observer. I do not recollect similar efforts since then, certainly not at last November’s CSP. The attendance request caused some unease among certain participating states. However, it was denied because the Palestinian delegation had not registered before the formal deadline and the CSP had already formally approved the list of attending observers.
Palestine became eligible to join treaties on 29 November 2012 when the UN General Assembly granted it status of ‘non-member observer state’ (Resolution A/RES/67/19). According to the UN Under-Secretary-General for Legal Affairs, the upgrade from ‘observer entity’ is significant because ‘Palestine may participate in multilateral treaties to which the Secretary-General is the depositary and in international conferences convened under the auspices of the UN that are open to “all States” (the “all States” formula)’. In reality the impact is broader, as is evidenced by Palestine’s accession to the NPT in February 2015 (instrument deposited with Moscow) and the BTWC (deposit with Russia and the United Kingdom). The Holy See is the only other sovereign entity with similar status. It joined the NPT in February 1971, the BTWC in January 2002, and the CWC in June 1999.
Since the upgrade Palestine has gone trough three waves of treaty adhesion: April 2014 (15 documents), December 2014 (18 documents), and December 2017 (22 documents). The treaties in question are listed in annex below. They fall in four major areas, namely diplomatic relations; human, economic and social rights; environmental law; and humanitarian/arms control law.
Of the 22 Palestinian applications in December, the UN Secretary-General issued Depositary Notifications for 19 treaties on 2 and 3 January. The notifications included several weapon control treaties. Only the instrument of accession to the CWC was subsequently withdrawn.
Why the retraction?
Since achieving UN Observer State status in 2012 Palestine has pursued a deliberate policy of becoming a respected member of the international community by unreservedly adhering to international law. In his Master of Laws dissertation entitled Palestine’s Ratification of International Treaties – A Back Door to Independence? (Lund University, 2016), Victor Persson argued that ‘ratifying international treaties strengthens Palestine’s claim for statehood through recognition, which in turn increases pressure for independence on its occupier, Israel’.
However, the latest wave of applications may have been more impulsive than considered. On the day of the deposit of the instruments of accession the Israeli daily Haaretz claimed that US President Donald Trump’s announcement on 6 December to move the US embassy from Tel Aviv to Jerusalem prompted Palestinian President Mahmoud Abbas’ decision. The article further noted that Israel’s ambassador to the UN was holding meetings with his US counterpart to formulate a joint response to the Palestinian move. Meanwhile, the rhetoric between Washington and Ramallah has grown increasingly strident.
Focussing on the escalating conflict, three explanations for the retraction of the instrument of accession seemed possible.
First, the USA (and through it, Israel) exerted great pressure on UN Secretary-General Guterres to force Palestine to reconsider its action. However, while nobody should be surprised about consultations with him, in his role as depositary he is just an executioner. As Article 77 of the Vienna Convention on the Law of Treaties states, one of the functions of a treaty depositary is ‘Receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it’. The USA could also have leaned on some of its Arab partners in the region, but given his mood and escalating anger with Washington it appears unlikely that President Abbas would have been persuaded.
Second, as noted earlier, the CWC is the only treaty for which Palestine rescinded its accession. Of all the treaties it applied to join, the CWC is the only one with a dedicated international organisation. (The International Atomic Energy Agency, which supports aspects of NPT implementation, is founded in a different document.) The USA is not loath to exercising the power of the purse to try and compel international organisations to more or less toe its line. For example, in October 2011 the board of UN Educational, Scientific and Cultural Organization (UNESCO) voted to admit Palestine as a state, which prompted Washington to cut in its annual contributions to the organisation. In April 2016 the UN Framework Convention on Climate Change (UNFCCC) accepted the Palestinian Authority as a state party, prompting a group of US Senators to demand that the UN agency be denied any further US funding.
The root of such actions lies in US Federal Law. As explained by the American Center for Law and Justice, US Public Law 101-246 (1990) provides:
No funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.
Moreover, Public Law 103-236, enacted in 1994, prohibits
voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.
According to this line of reasoning, pressure would have been exerted on Palestine to rescind its accession because of fears that the OPCW might otherwise lose over 25% of its budget.
This scenario also seems problematic. First, while the UN Secretary-General may be the CWC’s depositary, the OPCW is an independent treaty implementation organisation rather than a specialised UN agency. Second, contrary to UNESCO or UNFCCC, it is not the OPCW that invites in Palestine (or any other entity). A state automatically becomes an OPCW member as soon as the CWC enters into force for it. No single entity—another state party, the OPCW Technical Secretariat, or the UN Secretary-General—can halt or block that dynamic. Third, no US official has hinted in conversations since the Palestinian delegation attempted to officially participate in an OPCW meeting in 2014 that withholding contributions to the annual budget was an option. On the contrary, the USA has too great stakes in the successful global implementation of the CWC.
Avoidance to internationalise the Israeli–Palestinian conflict
Finally, a third possible explanation was suggested by several people from the Middle East whom I contacted: all parties involved tend to avoid internationalising the Israeli–Palestinian conflict.
Palestine’s joining the CWC could indeed have risked the opposite effect because of Israel’s widespread use of riot control agents and other irritants in the occupied territories. Any request to the OPCW to investigate such use would require clarification of the legal status of the occupied territories under international law. Only if Israel exerts full legal jurisdiction over those areas in which it uses riot control agents, it could be argued that such use is domestic and therefore part of legitimate law enforcement. Given Israel’s settlement policies, Palestine will continue to contest Israel’s jurisdiction over large swaths of land. OPCW investigators require authorisation by the state party concerned to access the site of an alleged incident. Israel, of course, is not a party to the CWC and questions would arise whether OPCW personnel can access all parts of the Palestinian territory without requiring transit approval by Israeli authorities (see also below). In addition, given the rawness of international feeling about the Israeli–Palestinian conflict, political and ideological divisions similar to the ones exposed by the debates on Syria’s CW use might split decision-making in the OPCW even further.
This hypothesis leaves open who might be the instigator of the pressure to have Palestine withdraw its instrument of accession and which diplomatic channels might have been used. It also ignores the various options—many of which could and would be devised within the treaty framework once issues are formally raised—available under the CWC to address any specific threats posed by CW to a state party. Indeed, similar legal and political questions have already been considered in connection with Palestine’s accession in January 2015 to the Rome Statute founding the International Criminal Court (ICC). Even while some key players are not party to the Statute, Beti Hohler concluded her analysis of Palestinian accession as follows:
By assessing admissibility of a case, the ICC would effectively be called to assess Israel’s justice system and its capability to genuinely deal with war crimes allegations. Whilst the actual determination would be made on the basis of a specific case and the individual concerned, it cannot be overlooked that Israel in general has a well functioning legal system headed by a respected supreme court.
What is then the likelihood of an intervention by the ICC following Palestine’s accession? Besides the aforementioned legal issues, policy and political realities should also be considered. The reality is that the ICC is heavily dependent on the support of its states parties, including for any type of enforcement as well as for actually ensuring the attendance of suspected perpetrators at The Hague.
In conclusion, the impact of Palestine’s accession to the ICC and what will be its political implications for the Middle East peace process remains to be seen. There are at the moment far more questions than there are clear-cut answers.
One thing however is certain: with Palestine’s accession to the Statute, the legal framework has changed and the parties to the conflict would be wise to accept and respect that.
A more benign explanation for the retraction of accession?
Did you know that the CWC contains 42 instances of situations that will legally affect states parties or require actions that they must complete within 30 days? One example is that the treaty enters into force for a new state party 30 days after the deposit of the instrument of ratification or accession (Article XXI, 2). Another one is that a new state party must submit a series of detailed declarations not later than 30 days after the CWC enters into force for it.
Given that President Abbas seems to have decided to take action on accession in retaliation for the announced move of the US embassy to Jerusalem, did the Palestinian government fully appreciate the level of preparations joining the CWC requires? The country may lie in an active conflict zone, but it is hardly a Syria that would justify consideration of exceptional measures.
Other countries with internal or cross-border conflicts have become member of the OPCW. However, the process takes time. It often involves regional organisations and other states parties facilitating or supporting interactions, providing concrete assistance with legal and practical preparations, teaching and training officials as well as reaching out to key stakeholder communities (including parliamentarians, industry, academia, or any other constituency whose activities could be affected by the treaty) to build political support and capacity. Expert staff from the OPCW Technical Secretariat may already be involved in the concrete preparations to meet the treaty requirements within the set deadlines well before a state becomes a party. In fact, the deposit of the instrument of accession may be timed in function of milestones achieved.
Palestine would face an additional major legal and practical problem: how and where would inspectors enter or exit its territory? First, the Palestinian territories are non-contiguous. Second, the Palestinian Authority does not control all of the Palestinian territory, which means that it would have to special arrangements with Hamas who controls the Gaza strip. However, while a border crossing with Jordan could conceivably be designated as the CWC-required Point of Entry/Point of Exit (Verification Annex, Part I ‘Definitions’, para. 24), the Gaza strip is completely surrounded by Egypt and Israel, two non-states parties. Reaching it over land from the West Bank, by air or via a sea port would likely involve Israel one way or another.
So, a benign explanation might hold that the OPCW alerted the UN Secretary-General or regional states parties to the host of practical problems the unexpected application would pose for Palestine.
Perhaps persuasion might not have been all that difficult. In the afore-cited dissertation, Victor Persson points to the possible role of another significant domestic factor in the process:
due to the current suspension of the parliament, Palestine must choose either to postpone the implementation process or implement the treaties by presidential decree. Postponing the implementation would raise doubts on Palestine’s commitment to follow its new international obligations. Implementing international law by presidential decree on the other hand is an undemocratic legislative procedure.
That dilemma does not even begin to address the complexity of CWC implementation.
At present it is not at all clear why Palestine retracted its accession to the CWC. The immediate explanations—different types of diplomatic pressure by different actors or prevention of internationalising the conflict with Israel—do not answer why the CWC is the only one out of more than 50 treaties that suffered this fate. The observation that the convention is the only international agreement to be served by its own international organisation offers few grounds to assume that the OPCW would be exposed to financial coercion.
An alternative explanation is that the Palestinian authorities have withdrawn the instrument of accession after having been informed of the complex ramifications of becoming a party to the CWC. The impulsiveness of the initial decision in the wake of the US announcement to move the embassy to Jerusalem seems to support this hypothesis. However, this line of thought still requires confirmation on the ground, whether in the Middle East, New York or The Hague.
Annex: Palestine’s waves of treaty adhesion
The first wave (April 2014)
- Vienna Convention on Consular Services
- Vienna Convention on Diplomatic Relations
- The Vienna Convention on the Law of Treaties
- Convention on the Elimination of All Forms of Discrimination against Women
- Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child (on the involvement of children in armed conflict)
- Convention on the Rights of Persons with Disabilities
- International Convention on the Elimination of All Forms of Racial Discrimination
- International Convention on the Suppression and Punishment of the Crime of Apartheid
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- UN Convention against Corruption
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Convention on the Prevention and Punishment of the Crime of Genocide
- Geneva Conventions of 12 August 1949 and Additional Protocols
- Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land
The second wave (December 2014)
- Convention on the Political Rights of Women
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
- Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)
- Convention on the Law of the Non-Navigational Uses of International Watercourses
- Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
- United Nations Convention against Transnational Organized Crime
- Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel
- United Nations Convention on the Law of the Sea
- Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
- Agreement on the Privileges and Immunities of the International Criminal Court
- Rome Statute of the International Criminal Court
- Declaration in accordance with the Rome Statute of the International Criminal Court
- The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
- The Treaty on the Non-Proliferation of Nuclear Weapons
- Convention on Cluster Munitions
The third wave (December 2017)
- International Convention for the Suppression of Acts of Nuclear Terrorism
- Convention on the Physical Protection of Nuclear Material
- Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides International Trade
- Stockholm Convention on Persistent Organic Pollutants
- The Convention for the Protection of the Mediterranean Sea Against Pollution
- The Convention on the Prohibition of Military or Any Modification Techniques (Environmental Modification Convention or ENMOD)
- Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
- Chemical Weapons Convention
- Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
- Biological and Toxin Weapons Convention
- Anti-Personnel Mine Ban Convention
- Remnants of War additional protocol one (CCW APV 2006)
- Arms Trade treaty
- United Nations Convention on Contracts for the International Sale of Goods
- Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol
- Convention on Psychotropic Substances of 1971
- United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
- United Nations Convention to Combat Desertification
- The Convention on International Transport of Goods Under Cover of TIR Carnets
- Protocol on the Sale of Children, Child Prostitution and Child Pornography
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
- The Amendment to article 8 of the Rome Statute of the International Criminal Court
(As an aside, the Treaty on the Prohibition of Nuclear Weapons intriguingly does not figure in the latter list, even though Palestine signed it when it was opened for signature on 20 September 2017.)