The Executive Council of the Organisation for the Prohibition of Chemical Weapons (OPCW) held its 94th session from 7–10 July. Prominent on the agenda was the determination by the Investigation and Identification Team (IIT) that ‘there are reasonable grounds to believe’ that Syrian government forces bear responsibility for several chemical weapon (CW) attacks at the end of March 2017.
The finding is the first time that the Technical Secretariat of the OPCW has formally charged a state party to the Chemical Weapons Convention (CWC) with violating Article I, para. 1(b) to never under any circumstances use CW. The accusation is serious: few other provisions in the convention could be less ambiguous.
The 41-member Executive Council approved the Decision addressing the possession and use of chemical weapons by the Syrian Arab Republic by a large majority: 29 against 3 (with 9 abstentions). It opens the door to further investigation of war crimes and prosecution of individual perpetrators of such crimes under international law. It also sets the process in motion whereby parties to the CWC may hold another state party accountable for major treaty breaches. This would be a first in the 23-year history of the disarmament agreement.
‘Tear-gas’ may come to symbolise the Trump Administration’s heavy-handed response to the popular reaction against the killing of George Floyd, a middle-aged black man, by a white police officer. The President’s rolling thunder of insensitive, divisive tweets extolling law and order and deriding the legitimate demands by the Black Lives Matter movement has contributed to irresponsible use of force against essentially peaceful protesters, onlookers, and members of the press. Police brutality combined with widespread lack of accountability – unless a person gets killed or an incident is captured on media – has led to multiple types of excesses. When President Trump sallied out of the fenced White House for a photo session in front of the nearby St John’s Episcopal Church, police and National Guard units cleared his path by tear-gassing protesters. Moments earlier he had threatened state governors with the deployment of the US military unless they use the National Guard in sufficient numbers to ‘dominate the streets’.
Over the past weeks many commentators have zoomed in on riot control agents (RCAs), arguing that lachrymators have been internationally banned for war but not for quenching public disturbances or riots. Fact-checker sections in newspapers generally confirm the assertion citing relevant provisions in the Chemical Weapons Convention (CWC). Prominent politicians, city councils, civil rights leaders and many other human rights advocates in the United States are now calling to prohibit RCAs for crowd control purposes.
While valid for the international community, is the assertion that RCAs cannot be used in war correct for the United States?
[Cross-posted from The Trench]
From 17 until 28 June I ran an Executive Course on Export Control at the M. Narikbayev KAZGUU University in Nur-Sultan (formerly Astana), Kazakhstan. Its goal was twofold. First, it tested in a real university setting parts of a master’s course on chemical, biological, radiological and nuclear (CBRN) dual-use technology transfer controls I have been developing since February 2018. Its second purpose was to attract interest in organising the full master’s course from other Central Asian academic institutes.
Set in the broader context of peace and disarmament education, the Executive Course posed considerable challenges from the perspective of educational methodology and the participants’ varied professional and cultural backgrounds. Contrary to many vocational training initiatives in treaty implementation assistance or strengthening treaty norms, the Executive Course (and the fuller master’s course on CBRN dual-use technology transfer controls) sought to deepen the general understanding of the security concerns about dual-use technologies, make participants understand how these might affect their own work and responsibilities both as a professional and an individual, and help them to identify and address issues of dual-use concern. As a general conceptual framework, the recommendations presented by the Advisory Board on Education and Outreach (ABEO) of the Organisation for the Prohibition of Chemical Weapons (OPCW) in its Report On The Role Of Education And Outreach in Preventing The Re-emergence of Chemical Weapons (OPCW document ABEO-5/1, 12 February 2018) guided both the preparations and the conduct of the Executive Course.
This blog posting introduces the master’s course, describes the preparations for the Executive course, identifies challenges that emerged in the planning phase and while the course was underway, and discusses how they were overcome.
[Cross-posted from The Trench]
On 2 May the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) organised a workshop relating to its programme to fully implement Article XI of the Chemical Weapons Convention (CWC). I addressed the States Parties in the session on ‘Promoting chemical knowledge’ and focussed on the responsibilities of chemists, both as members of their scientific associations and as individuals, in preventing the misuse of their discipline.
Consequences down the road
The role of chemists in war is not a new thing. The role of chemists in chemical warfare is of more recent origin. Just over a century ago, modern chemical warfare, as it began in my country, Belgium, on 22 April 1915, may seem like it came out of the blue. Actually, it resulted from the confluence of several trends in Europe and North America. Those trends emerged in the late 18th century. They included the establishment of chemistry as a science and the onset of the first industrial revolution. Those trends gathered pace throughout the 19th century.
Chemistry discovered many new molecules. Organic chemistry—one of the early convergences of chemistry and biology (another one of the new scientific disciplines)—yielded compounds that later often acquired widespread use as intermediaries in industrial production. Many decades after their initial discovery, several also became warfare agents during the 1st World War. In the first half of the 19th century, chemists also synthesised the first organophosphorus structures, which laid the foundation for the development of the nerve agents from the mid-1930s onwards.
After 1850, industrialisation increasingly shaped the organisation of science; it gave direction to the scientific endeavour; and it helped to restructure the scientific curricula at universities and other institutions of education. The idea of science for science’s sake gave way to a much more utilitarian vision in service of society.
Stagnation on the Western front in the autumn of 1914 would prove to be the catalyst for modern chemical warfare. Belligerents drew on national industrial and scientific prowess to try and force the decisive breakthrough on the battlefield to end the carnage. Toxic chemicals used to deliberately harm humans were one choice. Alas.
I am not saying that in the 19th and early 20th century chemists set out to design and develop chemical weapons (CW). All I know is that in each of the belligerent countries, these chemists were fully aware of the social and technological dynamics that were transforming their respective societies; often they were the drivers of these changes.
The 1st World War was the catalyst that brought science, industry and military art together with the purpose of devising a new mode of warfare. It was almost accidental. (With the design of the atomic bomb a quarter of a century later, the convergence was deliberate, and governments have maintained that interconnectedness ever since.)
Today, our societies are once again undergoing major transformations. Chemistry is changing fast; the interactions with other disciplines are widening as well as deepening. Chemical industry has spread across the planet; so many people all over the world are seeking careers in fields that have more than a tangible impact on the CWC. These areas are also critical to development; they are key to ameliorating the conditions of peoples everywhere and meeting future challenges to individual and human survival.
International cooperation and development benefit from peaceful intent
The OPCW’s Advisory Board on Education and Outreach (ABEO) is keenly aware of current transformations that might once again contribute to CW development and acquisition. Its members are also keenly aware that we are facing new situations in which toxic chemicals can be and are being used. A big challenge to the CWC is that our conception of CW is changing fast. Indeed, opportunistic use of industrial toxicants (such as chlorine) on the battlefields, terrorism and non-state actor use of toxic agents, and now more recently, assassinations with substances that had initially been developed or produced for military arsenals, are situations the CWC negotiators could not—and did not–anticipate.
In February of this year, the ABEO produced a report on the role of education and outreach in preventing the re-emergence of CW. It contains many recommendations for the Technical Secretariat to enhance the impact of its activities with States Parties in terms of education and outreach. The report also addresses how chemists everywhere can expand their consciousness about the dual-use characteristics of much of their work. It also seeks to enhance their awareness of the international and domestic scientific and technological environment in which they are functioning. It helps them to anticipate possible outcomes of their work many years into the future.
Engagement of chemists is evident from a key clause in the report’s title: ‘preventing the re-emergence of CW’. The report defines this goal as ‘the collective of actions undertaken by the OPCW, its Secretariat, and the National Authorities to implement the Convention, on the one hand, and by professional, scientific, and academic communities, as well as civil society constituencies and individuals, to advance consciousness, responsibility, and specific behaviours that support purposes not prohibited by the Convention, on the other hand’. (p. 6, para. 2.11)
In other words, ‘Prevention of the re-emergence of chemical weapons’ appeals to the responsibility of stakeholder communities and individuals, including chemists, to uphold the norm in the CWC.
Members of the ABEO have been involved in the development of the Hague Ethical Guidelines to promote responsible practice of chemistry. They are also active in promoting the Ethical Guidelines, including through active learning processes that involve chemists, which are advanced in the ABEO report. Some members have been instrumental in mobilising chemical societies and chemical industry councils to formally condemn the use of chlorine as a weapon. Some among them have also participated in the development of the on-line educational tool ‘Multiple Uses of Chemicals’ to promote the beneficial uses and prevent abuses of multiple-use chemicals, which the Technical Secretariat now supports by offering translation into the six official languages.
Reaching out to today’s chemist and the next generation of chemists (who are now in secondary school) is a task that National Authorities can help to promote, in addition to the ongoing initiatives undertaken by the Technical Secretariat.
At this point, I wish to stress that while the ABEO report suggests educational strategies, it does not offer one-size-fits-all suggestions. There is great need to adapt educational strategies to specific regional and national characteristics.
Awareness of the challenges—those visible today, as well as those looming on the horizon—is a task of permanent education. The ABEO report contains many practical examples of how such permanent education can be organised and practically implemented. It is of benefit to development for peaceful purposes and international collaboration in the scientific field of chemistry worldwide.
States Parties are welcome to approach the ABEO and its members—via the Office of Strategy and Policy of the Technical Secretariat—for assistance and concrete advice on education and outreach to key stakeholder groups.
[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.