The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of 1993, (1) or Chemical Weapons Convention (CWC), represented a major (and at the time, not uncontroversial) innovation in global treaty making. Covering a whole class of weapons of mass destruction, it mandated an immediate and comprehensive ban on use and acquisition, coupled with phased destruction and buttressed by an extensive and intrusive verification system administered by a substantial and specialized international organization. The goal was the total elimination of this particular type of weapon. Membership in the convention is nearly universal. The accession by Syria in 2013 brought the number of states parties to 190. States not parties are Angola, Egypt, Israel, Myanmar, North Korea, and South Sudan. (2)
Article I of the CWC sets forth the main obligations that its states parties have assumed under the convention. (3) They include (1) not to develop, produce, otherwise acquire, stockpile, or retain chemical weapons (CWs), or transfer them to anyone, (2) not to use CWs, (3) to destroy CWs that each state party owns or possesses or that are located in any place under its jurisdiction or control, (4) to destroy CWs that each state party abandoned on the territory of another state party, and (5) to destroy CW production facilities that each state party owns or possesses or that are located in any place under its jurisdiction or control. Thus, the CWC establishes not only arms control and disarmament law (nonproduction/possession and destruction of weapons) but also armed conflict law (nonuse of weapons).
The importance of the CWC was underscored in 2013 in connection with the UN action following the use of CWs in Syria, which at the time was not party to the CWC. With the consent of the Syrian government, the United Nations in August 2013 sent to Syria an investigation team, which subsequently produced a report saying that "chemical weapons have been used in the ongoing conflict between the parties in the Syrian Arab Republic" and that "surface-to-surface rockets containing the nerve agent Sarin were used ... in the Ghouta area of Damascus." (4) This UN investigation was conducted in collaboration with the implementation organization of the CWC--the Organisation for the Prohibition of Chemical Weapons (OPCW).
The United Nations and the OPCW collaborated closely in the subsequent removal and destruction (in third countries or on U.S. vessels) of all declared Syrian CWs and precursor chemicals, estimated to be about 1300 tons. UN Security Council Resolution 2118, adopted on September 27, 2013, "[d]ecide[d] that the Syrian Arab Republic shall comply with all aspects of the decision of the OPCW Executive Council of 27 September 2013," (5) which provided that Syria "shall ... complete the elimination of all chemical weapons material and equipment in the first half of 2014." (6) The OPCW decision, not necessarily legally binding in itself, was given an undoubtedly legally binding force on Syria by the Security Council resolution (into which the OPCW decision was incorporated as Annex I).
Less noticed but also of considerable legal significance have been the OCPWs innovations in managing the serious problems of major member states in not meeting the prescribed deadlines for destroying CWs that they possess and have declared to the OPCW. These innovations are the subject of this article.
According to CWC Article IV, paragraph 6, each state party is obligated to destroy its CWs not later than ten years after the convention enters into force, (7) with different detailed destruction deadlines set forth for each of the three categories of CWs. (8) The convention's Verification Annex, Part IV (A), paragraphs 24 and 26, (9) offered a possibility of extending the deadline for Category 1 CWs, though not beyond fifteen years after the convention enters into force. As the CWC entered into force on April 29,1997, the Article IV--based, initial destruction deadline and the final extended deadline were set for April 29, 2007, and April 29, 2012, respectively.
Eight states parties have declared possession of CWs to the OPCW: Albania, India, Iraq, Republic of Korea, Libya, Russia, Syria, and United States. (10) Of these, Albania, India, and the Republic of Korea completed destruction by 2009. (11) Albania technically violated its destruction obligation, in a de minimis way, when completion overran the deadline by some ten weeks. (12)
Iraq acceded to the CWC in January 2009 and declared possession of CWs in March of the same year. (13) A state that joins the CWC after April 29, 2007, such as Iraq or Syria, is subject to a special regime because the deadlines for the prescribed Article IV--based destruction and for submitting an extension request would already have passed. (14) According to CWC Article IV, paragraph 8, such a state party shall destroy its CWs "as soon as possible," with the "order of destruction" to be determined by the Executive Council. Iraq, because of the hazardous condition of its CW storage site, (15) has been unable even to conduct a detailed inventory. A detailed destruction plan has therefore yet to be formulated. (16)
The use of CWs in Syria that led to the U.S.-Russia agreement on the destruction of Syrian CWs, (17) coupled with the international political pressure that resulted in Syria acceding rapidly to the CWC in September 2013, opened a new horizon for the CWC regime in several respects. With regard to destruction of its CWs, as noted earlier, the OPCW Executive Council adopted a decision, incorporated into Security Council Resolution 2118, demanding that Syria complete destruction within the ambitious time frame of nine months. (18) Although the CWC was not formally in force for Syria when this decision was adopted, (19) the decision was, in effect, an "order of destruction" specified by the Executive Council under Article IV, paragraph 8, as Syria had already declared that it would apply the CWC provisionally pending the convention's entry into force for it. (20) The destruction operation was delayed by several months, principally because the ongoing civil war in Syria interfered with the removal of declared CWs and precursor chemicals. The removal of these materials to foreign ships was, in fact, achieved by the prescribed deadline of June 30, 2014, though the failure to actually destroy the materials violated Security Council Resolution 2118 and the OPCW Executive Council decision.
The other three declared possessor states--that is, Libya, (21) Russia, (22) and the United States (23)--all failed to fulfill the obligation of destroying CWs by the treaty-determined deadlines, notwithstanding that all of them were granted extensions in full to April 29, 2012. The OPCW was faced with the difficult question of how to deal with the advance notice given by these member states that they would not be in a position to comply with their CWC obligations.
This article analyzes the legal foundation and legal implications of the OPCW's approach to these cases of prospective noncompliance--particularly in relation to Russia and United States as very large holders of CWs. Part I analyzes the relevant legal provisions of the CWC. (24) Part II describes the OPCW decision, which effectively allowed the states parties concerned to modify their legal obligations under the CWC, and then considers three sets of interconnected issues: first, whether the legal arrangements imposed by the OPCW decision have the effect of de facto amending the CWC or, instead, can be seen as involving an implied new mechanism based on existing CWC provisions; second, how to describe the actual legal implications for the affected states parties themselves; and third, how the OPCW's approach to these destruction cases compares with the noncompliance procedures present, with varying degrees of specificity, in the texts of, or practices under, international environmental treaties or their supplementary documents. Part III explores, albeit more briefly, the OPCW's approach to managing destruction deadlines for abandoned, rather than stockpiled, CWs. This area presents similar kinds of issues concerning destruction deadlines, though under a somewhat different legal scheme than for stockpiled CWs. (25) Problems concerning abandoned CWs have yet to produce the same level of active legal controversy within the OPCW as those concerning stockpiled CWs, but given the extent of abandoned CWs, these issues might well come to be much more prominent central in the future.
VIOLATION-RELATED PROVISIONS OF THE CHEMICAL WEAPONS CONVENTION
Like most other arms control and disarmament treaties, the CWC contains provisions that can be invoked when a state party violates its obligations. Those provisions specify, in particular, what the two main organs of the OPCW--the Conference of the States Parties (CSP), comprising all states parties to the CWC, and the Executive Council, comprising forty-one of those states (26)--can do in such circumstances.
With regard to the Executive Council, Article VIII, paragraph 36, stipulates:
In its consideration of doubts or concerns regarding compliance and cases of non-compliance, ... the Executive Council shall consult with the States Parties involved and, as appropriate, request the State Party to take measures to redress the situation within a specified time. To the extent that the Executive Council considers further action to be necessary, it shall take, inter alia, one or more of the following measures:
(a) Inform all States Parties of the issue or matter;
(b) Bring the issue or matter to the attention of the Conference [of the States Parties];
(c) Make recommendations to the Conference regarding measures to redress the situation and to ensure compliance.
Paragraph 36 further specifies that "in cases of particular gravity and urgency," the Executive Council "shall...