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The Nonproliferation Review

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Legal aspects of weapons of mass destruction elimination contingencies

Robert A. Friedman

To cite this article: Robert A. Friedman (2016) Legal aspects of weapons of mass destruction elimination contingencies, The Nonproliferation Review, 23:1-2, 61-82, DOI: 10.1080/10736700.2016.1187370

To link to this article: http://dx.doi.org/10.1080/10736700.2016.1187370

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Legal aspects of weapons of mass destruction elimination contingencies Robert A. Friedman

ABSTRACT A state seeking to participate in a mission to eliminate weapons of mass destruction (WMD) in another state must ensure compliance with relevant domestic and international laws. This article explores the legal aspects of WMD elimination contingencies, which could take place either in the absence of a United Nations Security Council resolution or within such a context. The author focuses, in large part, on chemical weapons elimination, such as the recent endeavor in Syria, which presented the most complicated and novel legal issues associated with WMD elimination in the recent past. The article concludes by offering lessons to be considered in planning future WMD elimination missions.

KEYWORDS chemical weapons; Syria; Chemical Weapons Convention; weapons of mass destruction; disarmament; international law

This article explores the legal aspects of weapons of mass destruction (WMD) elimination contingencies. It is important to present several framing concepts and caveats related to the scope of the article and WMD elimination at the outset. First, this article is restricted to WMD elimination contingencies in other states. Thus, for example, the legal issues associated with elimination of the United States’s declared chemical weapons (CW) stock- pile in accordance with its treaty obligations under the Chemical Weapons Convention (CWC) fall outside the scope of this article.1 This article only explores the legal issues that might arise when one state is involved in WMD elimination efforts in another state.

Second, with the exception of the legal issues associated with several past WMD elimin- ation operations specifically discussed below, including the detailed contours of the Syrian CW elimination operation, the remaining legal aspects are addressed in the context of WMD “contingencies” (i.e., hypothetical operations that may occur prospectively).

Third, given the diverse and varied permutations of prospective WMD elimination operations, it is impossible to set forth a comprehensive survey of all potential legal issues that might arise. Because the legal considerations in any given case will be highly fact-specific and likely to involve a patchwork of international and domestic laws that may be different depending on the contours of the elimination operation and the specific states involved, this article is illustrative and not exhaustive. It highlights several of the main treaty provisions that are likely to be implicated in a WMD elimination contingency, but there may be other relevant treaty-based considerations. Similarly, several relevant international laws are briefly mentioned, but decision makers studying the feasibility of

© 2016 Middlebury Institute of International Studies at Monterey, James Martin Center for Nonproliferation Studies

CONTACT Robert A. Friedman [email protected]

NONPROLIFERATION REVIEW, 2016 VOL. 23, NOS. 1–2, 61–82 http://dx.doi.org/10.1080/10736700.2016.1187370

a future WMD contingency would be well served in reviewing the broader legal landscape based on the operative facts at the time to: (1) ensure that no additional, relevant laws are implicated; and (2) identify implications, if any, of the laws that are discussed below.

Fourth, this article gives unequal treatment to the different categories of WMD.2

Although the concept of WMD has evolved over time and is subject to different definitions and interpretations, the article follows the definition proposed by the 1948 United Nations Commission for Conventional Armaments that considered WMD to include

atomic explosive weapons, radioactive material weapons, lethal chemical and BW, and any weapons developed in the future which have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above.3

Although the generally accepted definition expressly references four discrete WMD com- ponents, this article focuses primarily—though not exclusively—on CW. Where appli- cable, references to the 1970 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the 1972 Biological Weapons Convention (BWC) will also be considered. The reason for the primary focus on the CWC is because the international community has significant experience operationalizing CW elimination efforts in the last five years and, as a consequence, such efforts impart helpful legal lessons for future elimination mis- sions. Indeed, because of the nature of the Syria CW elimination effort, the operational details were intricately connected to the requisite legal framework. Additionally, the complex design and detailed provisions of the CWC, coupled with the past practice of the convention’s implementing body—features lacking in the BWC—create a number of interesting legal elements that should be examined in the context of a prospective elim- ination operation.

Fifth, as an organizational model, this article borrows and modifies a concept presented during the James Martin Center for Nonproliferation Studies workshop on “Elimination of Weapons of Mass Destruction—Lessons Learned,” held November 9-10, 2015, in Washington, DC. For the purposes of the workshop and the broader project, the universe of potential WMD elimination contingencies was defined, in part, as varying across two categories: (1) how the elimination decision was reached (imposed, coerced, or induced/voluntary); and (2) how the elimination was carried out (externally, coopera- tively, or internally). For this article, some of the workshop concepts are recast and others are married to present WMD elimination contingencies based on: (1) whether the elimination operation was conducted in the absence of a UN Security Council resol- ution (UNSCR) or pursuant to one; and (2) whether the elimination operation was con- ducted inside the territory of the possessor state or external to it. This organization is better suited to discuss the relevant legal issues because of the legal effect that an UNSCR can have, depending on the context, and the nature of several provisions of the operative international treaties involved.

To illustrate: any participation by the United States in WMD elimination missions would need to comply with international and domestic law. Relevant international laws range from UNSCRs to provisions of international disarmament treaties such as the CWC. On one hand, in an ordinary setting, any CW elimination operation—in the absence of a UNSCR—would need to comply with the CWC. CW elimination oper- ations that occur outside possessor states may pose challenges related to key provisions of the CWC (outlined below) that are not as pronounced in elimination operations that

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occur inside possessor states. On the other hand, a CW elimination operation conducted pursuant to a UNSCR could impose new or different international legal obligations than those contained in disarmament treaties, or authorize a new or different course of action. Dividing the article in this way helps explain how the operational details of a WMD con- tingency can change depending on the international legal framework involved.

Furthermore, each participating state would need to scrutinize its domestic legal fra- mework to ensure its involvement in a WMD elimination mission was consistent with its national laws and regulations. The potentially applicable domestic laws in the United States for any particular WMD elimination operation are diverse and varied, and attempting to catalogue all, or even most, of the laws that might be implicated is beyond the scope of this article. Accordingly, this article briefly summarizes some of the most prominent domestic laws relevant to WMD elimination operations, including relevant funding authorities that have facilitated past US activities. It also highlights, in particular, several national laws that were considered in the context of the Syria CW elimination operation.

Sixth, although legal issues will be presented broadly along the lines set forth above, the greatest portion of the discussion will illustrate the author’s points using the CW elimin- ation operation in Syria. The Syria situation presented the most complicated and novel legal issues associated with WMD elimination in the recent past and provides important lessons that should be considered in future WMD contingencies.

Finally, the article concludes by offering lessons learned.

WMD elimination in the absence of a UN Security Council resolution

This section discusses legal issues associated with a WMD elimination contingency con- ducted in the absence of a UNSCR. Wherein a UNSCR confers new or different inter- national legal obligations or authorizes a new or different course of action, states must participate in a manner that is otherwise consistent with that state’s international legal obligations, including treaty obligations.

Accordingly, the primary focus in this section is on the key treaty-based provisions potentially applicable in the event of a WMD elimination contingency. If certain legal con- siderations are only relevant in the context of a WMD elimination contingency outside the possessor state, this information is noted and explained. Although the section is largely drafted through the lens of the CWC, where applicable, analogous considerations in the biological and nuclear contexts are noted as well.4 The section also highlights several his- torical examples of WMD elimination operations under the auspices of the CWC that illustrate how the treaty’s provisions operate in practice. Finally, the section summarizes several additional international laws that may be applicable and that should be taken into account in future CW elimination operations.

The Chemical Weapons Convention

There are several significant treaty-based legal prohibitions that affect a WMD elimination contingency outside a possessor state. Of these, the CWC’s categorical transfer restriction is perhaps paramount.

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Transfer prohibitions A state party to the CWC has an obligation not to “develop, produce, otherwise acquire, stockpile, or retain CW, or transfer, directly or indirectly, CW to anyone.”5 This prohibition introduces a key legal constraint regarding an external CW elimination operation. In short: the external removal and destruction of CW cannot entail “transferring” CW to another state party, nor entail another state party “acquiring” CW. The contours of the “transfer” prohibition is critical to the feasibility of an external elimination contingency.

Article 31 of the Vienna Convention on the Law of Treaties sets forth the general rules of treaty interpretation, including that a treaty “shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”6 The CWC’s categorical prohibition on “transfering, directly or indirectly, CW to anyone,” is without exception or qualifica- tion. Thus, the plain language of the convention does not distinguish between “bad” trans- fers (e.g., for purposes of proliferation) and “good” transfers (e.g., transfers for purposes of destruction or elimination).

Importantly, the CWC’s travaux préparatoires—official documents recording the nego- tiations of the treaty— provide supporting evidence that some state parties, including the United States and Germany, sought to include “permitted transfers” as exceptions to the categorical transfer prohibition of CW.7 Such a carve-out could have facilitated external CW elimination contingencies. Indeed, in a February 24, 1984, working paper, Germany noted that the final agreement should include “an exception to the transfer ban permitting the transfer of CW between States parties by mutual agreement for pur- poses of elimination.”8 Such an exception is “useful since it allows a State Party to have its CW destroyed in the destruction facility of another party, thereby avoiding the costly construction of its own facility.”9 Accordingly, Germany sought to include the fol- lowing provision in the rolling text of the CWC: “By mutual agreement, CW may be trans- ferred between parties for the sole purpose of the destruction of such weapons.”10

Similarly, the draft CWC text submitted by the United States on April 18, 1984, con- tains a section on “Permitted Activities” proposing that “A Party in a position to do so may assist another Party in destruction of CW, including shipment of CW to its territory for the purpose of destroying them, or in destruction of CW facilities.”11 The CWC’s travaux préparatoires can be used to confirm the meaning resulting from application of Article 31. Here, the plain text of the treaty expressing a categorical prohibition on the transfer of CW is supported by reference to certain materials in the CWC’s travaux pré- paratoires confirming that transfers for purposes of destruction was considered and not accepted into the CWC’s rolling treaty text, and as such, are prohibited.

It is also notable that other arms-control agreements contain express exceptions on the prohibitions of transfers for the purposes of destruction. For example, in Article I of the 2008 Convention on Cluster Munitions, each state party undertakes “never under any cir- cumstances to: (a) use cluster munitions; (b) develop, produce, otherwise acquire, stock- pile, retain or transfer to anyone, directly or indirectly, cluster munitions … .”12 This general prohibition closely tracks the general prohibition contained in the CWC for banned items. However, Article III(7) notes that “[n]otwithstanding the provisions of Article I of this Convention, the transfer of cluster munitions to another State Party for the purpose of destruction […] is permitted” (emphasis added). The 1999 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel

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Mines and on Their Destruction similarly allows that the “transfer of anti-personnel mines for the purpose of destruction is permitted.”13 As in the CWC, the BWC establishes binding legal obligations on state parties banning the misuse of biological materials as weapons and categorically prohibiting the transfer of biological weapons (BW).14 Articles I and II of the NPT, respectively, also prohibit the transfer and receipt of transfer “whatso- ever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly.”15 In sum, an important legal con- sideration in the context of an external elimination contingency would require an analysis of the degree of possessor state control of its CW throughout the course of the operation to avoid a situation that might entail transfer of CW to another state party. This would be the case even if such a transfer were supported by legitimate nonproliferation concerns or otherwise conducted for the sole purpose of elimination.

Even if a CW elimination operation were conducted wholly within the territory of the possessor state, potential CW transfer concerns would not be completely moot, though such concerns would probably be less pronounced. The logistics required for an internal elimination effort would probably be less complex, reliance on support from the inter- national community would probably be less significant, and it might be easier for the pos- sessor state to credibly maintain possession and control of its CW stocks.

A similar legal analysis for WMD elimination contingencies would apply under the BWC. Participation by other states would require a close analysis of the degree of possessor-state control of its WMD throughout the course of the elimination operation to avoid a situation that might entail the transfer of such control of the possessor state’s WMD to another state.

Possessor state’s destruction obligation In addition to the CW transfer prohibition, a CWC state party also has an obligation to “destroy CW it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention” (emphasis added).16

It should be noted that the role of the Organisation for the Prohibition of Chemical Weapons (OPCW) during the elimination process of CW is only to verify the destruction of declared CW. The state is responsible for the elimination of the CW stockpile and to ensure that no “transfer” takes place. The destruction obligation introduces two potential legal issues in the context of an external elimination operation.

First, an external elimination scenario might entail another state party’s direct involve- ment in removing a possessor state’s CW stockpile. Direct involvement might result in a participating state party’s taking “control” or “possession” within the meaning of the CWC. Any action that resulted in that state party’s having ownership, possession, jurisdic- tion, or control over CW would result in that state party’s having a further treaty obligation to destroy the CW in accordance with the destruction requirements of the CWC. Thus, state parties’ direct involvement in an external elimination scenario, in the absence of an UNSCR, would need to stop short of taking “control” or “possession” of the CW (because such action is prohibited by the Article I transfer prohibition discussed above), but also because it would result in the CWC destruction obligation’s shifting to that state party.

Second, Article I(2) of the CWC raises an interesting question regarding movement of CW. The CWC clearly prohibits “transfers” of CW as discussed above, but does not expressly proscribe “movement” of CW, including across a border from the jurisdiction

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of one state party to the jurisdiction of a second state party. The concept of “jurisdiction” is referenced in Article I(2) only with respect to describe the scope and extent of the possessor state’s destruction obligation. It does not address the location of the destruction itself, or whether the possessor state can fulfill its destruction obligation on the territory of another state party. Therefore, the CWC is silent on the movement of CW from one state party’s territory to another’s.

There are separate provisions of the CWC and its Verification Annex that suggest that CW would normally be expected to be destroyed within the territory of the possessor state, or in a place under its jurisdiction or control. For example, Article IV(4) states that each state party shall provide access to CW specified in paragraph 1 for the purpose of systematic verification of the declaration through on-site inspection.17

Although nothing in the CWC text necessarily requires destruction within the territory of the possessor state, or in a place under its jurisdiction or control, it is reasonable to conclude that if the possessor state has an obligation to provide access to its CW and CW destruction facility for an on-site inspection, then it ought to have the sovereign means to assure such access. If the CW or the destruction facility were located in the sovereign jurisdiction of another state party, it would be difficult for the possessor state to assure that these obligations were observed.

On the other hand, in the “principles and methods for destruction of CW” contained in the CWC Verification Annex, each state party “shall determine how it shall destroy CW, except that the following processes may not be used: dumping in any body of water, land burial, or open-pit burning. [Each State Party] shall destroy CW only at specifically desig- nated and appropriately designed and equipped facilities.”18 Because each state party has a degree of discretion on how to destroy its CW—assuming such destruction does not entail one of the methods that is expressly prohibited—it is reasonable to conclude that this dis- cretion could entail external transport for elimination.

In sum, although there are a number of provisions in the CWC that assume CW destruction would normally be performed within the territory of the possessor state, there does not appear to be a categorical prohibition on moving CW into the territory of another state party for purposes of destruction. Finally, as will be discussed in greater detail below, there is OPCW precedent for a possessor state party’s moving its CW externally for elimination.

The BWC contains substantially similar possessor-state destruction obligations. Indeed, under Article II of the BWC, each state party “undertakes to destroy, or to divert to peaceful purposes, as soon as possible but not later than nine months after entry into force of the Convention, all agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, which are in its possession or under its jurisdiction or control.” Conversely, it is important to note that, unlike the CWC, the BWC lacks similar detailed provisions regarding initial possessor-state declarations, procedures for destroying BW, and systemic verification thereof.

The legal obligations under the NPT are structured differently. Article VI requires state parties “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” But the NPT’s regime is inherently binary: it legitimizes the situation existing at the time the treaty entered into force—with five nuclear-weapon states. All the remaining states

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are precluded from developing, manufacturing, or otherwise acquiring nuclear weapons. In return, non-nuclear-weapon states benefit from assistance and cooperation in the peaceful applications of nuclear energy on a non-discriminatory basis and under inter- national procedures.

Prohibition of assistance, encouragement, or inducement

A state party also has an obligation not to “assist, encourage or induce, in any way, anyone to engage inactivity prohibited toa StateParty underthis Convention.”19 The obligationnotto “assist, encourage, or induce” might constitute a violation of the CWC if, for example, a state party provided financial or material support to another state party in removing (or receiving the transfer of) possessor state’s CW, particularly in the absence of a clear destruction plan.20 Similarly, under Article 3 of the BWC, each state party “undertakes not … in any way to assist, encourage, or induce any State, group of States or international organizations to manufacture or otherwise acquire any of the agents, toxins, weapons, equipment or means of delivery specified in Article I of this Convention.”21

Importantly, however, assuming that the CW elimination contingency itself—whether inside or outside the possessor state party—was consistent with the possessor state party’s obligations under the CWC, providing material or financial support in furtherance of such a CW removal or destruction operation would not appear to raise additional concerns under the convention. As discussed below, assistance of this nature was provided when the United States assisted Albania in destroying its declared CW stockpile.

Powers of the OPCW’s Executive Council As the implementation body of the CWC, the OPCW consists of a Conference of the States Parties (composed of all state parties to the treaty), an Executive Council (EC) (composed of forty-one member states), and a Technical Secretariat (the professional staff, headed by a director-general).

The OPCW’s EC plays an important role in the review and approval of a possessor state’s plans for the destruction of its CW. The EC is vested, by paragraph 20 of Part IV(A) of the Verification Annex, with the authority to review the general plans for destruc- tion of CW (submitted pursuant to Article III, paragraph 1(a)(v) and in accordance with paragraph 6) and to assess their conformity with the order of destruction.22 Thus, the EC’s role in reviewing the possessor state’s destruction plans means the body would serve an integral function in approving a CW elimination contingency, whether the contingency occurred inside or outside the possessor state.

The BWC does not have a treaty implementation body akin to the OPCW’s Technical Secretariat. The BWC Implementation Support Unit, based in Geneva at the UN Office of Disarmament Affairs, provides only administrative support and assistance to BWC parties. The conference of state parties, which meets every five years, is the only body established by the convention, and the treaty has no verification provisions, other than allowing states to request a UN investigation of activities they consider suspicious in other states.23 As a consequence, unlike the EC’s role in the CWC to review and approve plans of destruction, there is no similar central treaty body function under the BWC to review and approve plans of destruction, even in the event of a state’s declaring a BW program.

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Relevant OPCW historical examples of WMD elimination

Since the entry-into-force of the CWC in 1997, there have been several cases where CW have been removed from the territory of the possessor state for destruction and several cases where the international community participated in assisting possessor states with in-country destruction operations. Two cases involved de minimis amounts of “old chemi- cal weapons”—produced before 1925—in hazardous material condition.24 Two other examples are offered to illustrate how assistance was provided from non- possessor states in CW elimination operations that took place inside possessor states. These cases are worth reviewing because they offer helpful guideposts for how the international com- munity might approach a future CW elimination contingency under the CWC.

Importantly, as noted above, the BWC does not require state parties to declare BW or facilities, and no states have admitted to possessing such weapons when ratifying the treaty or acceding to it, though a number of states have had or are suspected of having had BW programs.25

Removal of old chemical weapons from Austria to Germany (2007) In 2007, Austria and Germany proposed in a joint national paper submitted to the OPCW to remove three old chemical weapons (OCW) across the Austrian border to a destruction facility in Germany.

Austria did not have a CW destruction facility and was therefore unable to destroy the three shells in its territory in accordance with the provisions of the CWC, as required by Article I, paragraph 4. The two states offered a plan to the OPCW that entailed transport- ing the three shells from their location in Austria to the destruction facility in Germany under the monitoring of an inspection team from the OPCW Technical Secretariat and with German specialists. For that purpose, Germany made available to Austria its special- ized transportation equipment and provided an escort for the transport, but the control of the shells was under the authority of Austria at all times.26

In achieving the overall purpose of the CWC, the joint paper noted that the CWC sti- pulates cooperation among state parties (Articles IV, VII, and X) and the best possible pro- tection of the safety of people and the environment (Article VII). Since Austria—unlike Germany—did not have a destruction facility and was, at the time, unable to destroy the shells in accordance with the provisions of the convention, not transporting them for immediate destruction in Germany would not only prolong but even increase the risk they would pose to the safety of people and the protection of the environment.

The OPCW EC approved the transport to Germany for destruction with several caveats. First, the OCW were at all times to remain under the ownership and control of Austria. To this end, Austrian officials accompanied the transport of the OCW. Second, the Technical Secretariat continuously monitored the transport and reported to the EC. Finally, the EC underscored that “this case shall not establish any precedent for any future cases.”27

Removal of OCW from Netherlands to Belgium (2013) In 2013, the Netherlands informed the EC that a single OCW discovered in a potato field would be transported to Belgium for destruction. The EC simply noted the information provided by the Netherlands and took no formal action to approve and impose conditions (in contrast to its actions in the 2007 Austria-German case).

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Libya (2004) Libya joined the CWC in 2004, and, on March 5 of that year, submitted an initial declara- tion to the OPCW identifying an inventory of 23 tons of mustard agent that had been pro- duced in a facility at Rabta, 60 miles south of Tripoli, between 1980 and 1990, and stored at two sites. The declaration stated that the CW production facility at Rabta was no longer in use. Libya further declared a stockpile of unfilled munitions totaling 3,200 aerial bombs and a sizeable stockpile of nerve-agent precursor chemicals. OPCW inspectors observed the destruction of Libya’s entire declared stockpile of unfilled chemical munitions.

Under the CWC, the possessor-state destruction obligation required Libya to take responsibility for destruction of its CW stockpile, and the categorical transfer prohibition precluded Libya from giving its stockpile to another country for purposes of destruction. However, neither of these provisions prohibited the receipt of assistance from outside parties. For example, the US State Department’s Bureau of Arms Control, Verification, and Compliance, with funding from the Nonproliferation and Disarmament Fund, helped Tripoli “ensure rapid submission of an accurate declaration of its CW stockpile and civilian chemical industry” and to begin the destruction of its CW stockpiles.28 As noted above, as long as the CW elimination contingency is consistent with the possessor state party’s obligations under the CWC, providing material or financial support in furtherance of such a CW removal or destruction operation does not raise additional con- cerns under the convention. In Libya, the assistance provided by the international commu- nity was in furtherance of the OPCW-approved plan of destruction.29

Albania (2002) In November 2002, Albania notified the OPCW Secretariat that it had discovered a stock- pile of CW totaling 16 tons, including mustard, lewisite, and small quantities of compounds, all stored in bulk (non-weaponized) form at a site some 50 kilometers from Tirana.

On July 11, 2007, the OPCW confirmed the destruction of the entire CW stockpile in Albania. Importantly, in commending Albania’s achievement, the OPCW’s director- general extended his appreciation to OPCW member states Greece, Italy, Switzerland, and the United States for the support they had provided in Albania’s destruction effort.30

For example, the State Department installed physical security systems at the CW storage site and the Defense Threat Reduction Agency assumed responsibility for main- taining the systems and help in developing plans to eliminate the CW agents (obligating $18.2 million in fiscal years 2004 and 2005).31 Such assistance in providing material or financial support in furtherance of an OPCW-approved plan of CW destruction is consist- ent with both the possessor state party and non-possessor state party’s obligations under the CWC.

Biological threat reduction in non-Russian former Soviet Union states After the fall of the Soviet Union, its successor states faced the arduous task of disman- tling the vestiges of the Soviet BW program and securing pathogen collections and lab- oratories. Facilities in these countries were abandoned by the Russian military when the republics became independent. For example, the United States learned of dangerous pathogen collections dispersed throughout the region as part of the Soviet Anti-Plague System which consisted of institutes in eleven republics. A decade after the dissolution of the Soviet Union, many of the aging and neglected facilities lacked security and

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safety measures, were in disrepair, or had lost professional staff due to harsh and uncer- tain economic conditions.

The United States therefore

accelerated its assistance to these facilities starting in the late 1990s … and [t]he CTR Biologi- cal Threat Reduction program … supported activities in Azerbaijan, Georgia, Kyrgyzstan, Ukraine, Uzbekistan, Armenia, and Kazakhstan, where the Soviet Union housed much of its BW production complex.32 … CTR funding helped destroy the large-scale BW production facility in Stepnogorsk, Kazakhstan, [] assisted in decontaminating the open-air BW testing site at Vozrozhdeniye Island in the Aral Sea, Uzbekistan … built a secure Central Reference Laboratories (CRL) for pathogen collections in Ukraine and Kazakhstan, and is constructing a CRL in Azerbaijan.33

As noted above, unlike the EC’s role in the CWC to review and approve plans of destruction, there is no similar central treaty body under the BWC, even where, as in the case of the former Soviet states, international efforts were clearly designed to dismantle the remnants of the Soviet BW program. Therefore, it must be determined that inter- national participation in any BW elimination operation is in compliance with several key provisions of the BWC discussed above,

In particular, under Article III of the BWC, state parties may not transfer to any reci- pient any of the agents, toxins, weapons, equipment or means of delivery that are prohib- ited by the convention. Thus, for WMD elimination contingencies that take place inside or outside of possessor states under the BWC, participation by other states would require avoiding a situation that might entail the transfer of such control of the possessor state’s WMD to another state.

Additional international legal considerations in the absence of an UNSCR

Depending on the operational details of a CW elimination contingency, there could be a range of international environmental and maritime agreements that may be applicable and should be taken into account. Although it is impossible to conduct a comprehensive survey of the entire legal landscape in the abstract, several international laws would probably require close examination to determine whether there were relevant restrictions or prohibitions:

. The 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (the “London Convention”) prohibits “incineration at sea of indus- trial waste.” “Industrial waste” is defined as “waste materials generated by manufactur- ing or processing operations.”34

. The 1996 Protocol to the London Convention categorically prohibits incineration at sea of “wastes or other matter”, defined broadly as “material and substance of any kind, form or description.”35

. The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (the “Basel Convention”) generally prohibits parties from exporting “hazardous wastes or other wastes” to non-parties. Waste loaded on a ship in one state and unloaded in another would typically constitute an export under this Convention. The term “wastes” includes “substances or objects which are … intended to be disposed of.”36

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. The International Convention for the Safety of Life at Sea (SOLAS) and various ship- ping-related Codes that are made mandatory through it, specify minimum safety- related standards for the construction, equipment, and operation of ships. SOLAS and associated Codes—including, for example, the International Maritime Dangerous Goods Code (IMDG Code)—provide highly technical requirements for ships’ equip- ment and the manner in which hazardous materials may be safely transported on ships, but do not generally prohibit the carriage of particular materials.

. The International Convention for the Prevention of Pollution from Ships (MARPOL) aims to prevent or minimize pollution from ships, including both pollution from acci- dents and from routine operations. One MARPOL provision generally prohibits the shipboard incineration of certain wastes. Compliance with the IMDG Code is required under MARPOL, as it is under SOLAS, but as noted above, the IMDG Code does not prohibit the carriage of dangerous goods, and instead regulates the manner in which dangerous goods are carried.

One final point deserves mention. It addition to analyzing relevant treaty obligations and other international laws, those planning for future elimination contingencies should also seek to obtain the possessor state’s consent to enable another state party’s per- sonnel to assist in securing or destroying CW within its territory. They should additionally seek the possessor state’s approval of the participation of those state parties providing only financial assistance or material support only, as well as their consent to the participation of personnel from international organizations such as the OPCW.

WMD elimination pursuant to a UN Security Council resolution: the Syria CW elimination operation

Before discussing the Syria CW elimination operation in detail, it is important to explain the importance of Chapter VII of the UN Charter and the effects of decisions that are taken pursuant to it. Chapter VII of the United Nations Charter empowers the Security Council to make “decisions” that all UN member states are obligated to accept and carry out under international law.

The importance of Chapter VII of the UN Charter

Typically, resolutions that are adopted under Chapter VII include some provisions that are binding and others that are not. Security Council “recommendations” fall into this latter category, whereas “decisions” (particularly the operative paragraphs) fall into the former.37 Unfortunately, there are occasional disagreements among the Security Council members, and determining whether certain provisions are mandatory or horta- tory are not always uniform. UN member states may have different views about whether a particular provision is legally binding and whether specific operative paragraphs constitute “recommendations” or “decisions.”

What is clear is that all UN member states have a legal obligation to accept and carry out the Security Council’s Chapter VII “decisions.” Importantly, Security Council decisions that authorize a mission or actions within the territory of a member state are generally understood, as a legal matter, to require that the member state accept the

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mission on its territory and not to frustrate the Security Council’s ability to carry out its mandate. It is also possible for the Security Council to authorize actions that are narrowly tailored to apply to a subset of member states (or a single member state) and thus create limited rights or obligations, depending on the context. Finally, Article 103 of the UN Charter stipulates that, in the event of conflict between a state’s obligations under the charter and their obligations under any other international agreement, their obligations under the charter shall prevail.

For a WMD elimination operation, a Chapter VII Security Council resolution can be crucial in several ways. First, because all UN member states have a legal obligation to accept and carry out the Security Council’s Chapter VII “decisions,” the Council could facilitate action even in states that are outside the disarmament treaty structure.

A Chapter VII Security Council resolution could facilitate a WMD elimination oper- ation where a disarmament treaty is absent or lacking. For example, a UNSCR was an appropriate tool to eliminate Saddam Hussein’s CW stockpile because the CWC (and its associated destruction procedures) was not yet in force. In addition, Iraq had not yet ratified the BWC. Indeed, in addition to requiring Iraq to surrender its WMD and WMD programs, UNSCR 687, citing Chapter VII, called for the establishment of a United Nations Special Commission to conduct on-site inspections of Iraq’s WMD- related facilities, in cooperation with the International Atomic Energy Agency.38

For example, Chapter VII would loom large in the event of a WMD elimination contin- gency in North Korea, one of four states not to have joined the CWC. Despite its claims not to possess CW, North Korea is believed to be among the world’s largest CW possessors, ranking third after the United States and Russia.39 If North Korea failed to join the CWC and there was an opportunity for the international community to participate in a WMD elimin- ation operation, such action would likely require a chapter VII Security Council resolution.

As will be explained in detail below, a Chapter VII Security Council resolution could authorize actions by the international community that might otherwise be inconsistent with a state’s treaty obligations.

The Syria CW elimination operation

The CWC is a landmark disarmament treaty. It is the first treaty to comprehensively and verifiably ban an entire category of WMD. CWC negotiations spanned nearly two decades, and the Conference on Disarmament finally agreed on its text in 1992, at the end of the Cold War. The CWC opened for signature in 1993 and entered into force in 1997.

For the most part, the CWC focuses on eliminating state CW programs in permissive environments through cooperative, rather than adversarial, methods of compliance man- agement. Therefore, when presented with unforeseen situations within Syria, for example, state parties and the OPCW had to adapt—sometimes by looking for new approaches and solutions to meet the CWC’s overall objectives and purpose.

Unlike the de minimis OCW cases mentioned above, the removal operation for the Syrian stockpile involved nearly 1,300 metric tons of chemicals weapons. A few concepts should be considered relating to the legal backdrop of CW elimination in Syria:

(1) The CWC compliance regime had never before been utilized to carry out such an expedited and ambitious destruction and verification schedule.

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(2) To address the complex and novel Syria CW removal challenges, the OPCW and United Nations were given a special mandate from the UN Security Council and the OPCW Executive Council, in the form of UNSCR 2118 and the September 27, 2013. EC decision, respectively. The OPCW took on a large role in implementing UNSCR 2118 and the EC decision through the work of its Technical Secretariat and as part of the OPCW-UN Joint Mission, formally established in Security Council document S/2013/603.40

(3) Prohibitions and limitations in the CWC legal architecture introduced a unique set of problems in the Syrian CW destruction effort.

(4) The expeditious destruction of the Syrian regime’s declared CW arsenal inside a war- torn country—even under the most optimistic circumstances—was recognized as exceedingly difficult, which is why removal of the CW from Syria was specifically allowed under UNSCR 2118 for verified destruction elsewhere. The flexibility pro- vided in UNSCR 2118 was essential in facilitating the tremendous cooperation of the international community in eliminating the declared Syrian CW stockpile.

The international legal framework

Three main authorities constituted the legal framework of the Syria CW destruction effort: the “Kerry-Lavrov Framework,” the EC decision, and UNSCR 2118.

Kerry-Lavrov framework The first piece to the destruction regime was a political commitment, rather than a legally binding agreement, which served as a watershed document that shaped the entire inter- national effort to eliminate Syria’s CW. After several days of high-level discussions between the United States and the Russian Federation, Secretary of State John Kerry and Foreign Minister Sergei Lavrov concluded the “US-Russia Framework for Elimination of Syrian Chemical Weapons,” on September 14, 2013.

Several features of the Kerry-Lavrov Framework had lasting effects on the development of the legal elements of the destruction effort. First, it established a critical role for the EC of the OPCW. That role was to set out special procedures for expeditious destruction of the Syrian CW program, as well as verification of its destruction. This was important because the CWC does not provide specific guidance on the destruction process (including time- lines) when a state joins the CWC after 2007, the ten-year period from the convention’s entry-into-force. The OPCW typically would not take such an assertive role in dictating the destruction schedule to a state party. In this case, however, since Syria—literally embattledamida civilwar—couldnotdrive thetimeline forCWdestruction,theframework envisioned a much more active role for the OPCW EC.

Second, the framework committed the United States and Russia to work toward adop- tion of a UNSCR that would reinforce the OPCW EC decision and provided that, in the event of noncompliance, the UN Security Council would impose measures under Chapter VII of the UN Charter. A third key feature of the framework was that it laid the ground- work for removal of CW materials and their destruction outside of Syria. Removal (and transfer of ownership) is a unique feature of the Syrian case, and a reflection of the special challenges the Syria situation imposed. Removal under OPCW oversight would allow the international community to press for an aggressive timeline in accordance with the overall

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objective of mitigating the threat that CW posed in Syria, while still being realistic about the possibility of meeting the target dates.

Executive Council decision The second piece to the puzzle was the landmark OPCW EC decision on Syria CW elim- ination adopted on September 27, 2013. The key features of the EC decision included:

(1) timelines for destruction consistent with those provided in the Kerry- Lavrov framework;

(2) a decision that the Technical Secretariat would begin inspections in Syria as soon as possible and not later than October 1, 2013 (i.e., prior to the CWC’s entry-into-force for Syria);

(3) a call for “stringent verification” of the destruction of the Syria CW program pursuant to Article IV (8) and Article V (10) of the CWC. This provision had never previously been applied. One example of this more exacting verification standard is in operative paragraph 1(a)(iii) of the EC decision, which calls for, among other things, Syria’s declaration to the Technical Secretariat, of “the location of all of its CW pro- duction facilities, including mixing and filling facilities, and CW research and devel- opment facilities.”

(4) a call for the OPCW to “inspect as soon as possible any other site identified by a state party as having been involved in the Syrian CW programme, unless deemed unwar- ranted by the Director General, or the matter resolved through the process of consul- tations and cooperation” (paragraph 2[d]). Although the provision has not been exercised to date, it presents state parties with an alternative route to request OPCW inspections in the event of concerns about Syria’s compliance with its obli- gations under the EC decision or the CWC.

UNSCR 2118 The final—and, from an international legal perspective, the most critical—piece of the legal international framework was UNSCR 2118. Adopted the same day as the EC decision, UNSCR 2118 provided crucial supplementary authority in several respects. Operative paragraph 6 of UNSCR 2118 requires the Syrian government to “comply with all aspects” of the OPCW decision, notable because Syria was not yet a party to the convention. Entry-into-force for Syria was thirty days after its September 14 deposit of its instrument of accession. Moreover, even when Syria became a state party, it was not clear the EC decision would be legally binding on Syria, particularly to the extent it imposed conditions beyond the scope of the CWC.

Operative paragraph 7 of UNSCR 2118 decided that Syria must fully cooperate with the OPCW and the United Nations, including by providing immediate and unfettered access to any and all sites and individuals that the OPCW had grounds to believe were important for the purpose of its mandate. This provision determined such access to be a “right” of these international institutions, ensuring that Syria could not deny access to key sites and individuals in the CW destruction effort.

Finally, operative paragraph 10 of UNSCR 2118 authorized member states “to acquire, control, transport, transfer, and destroy CW identified by the OPCW, consistent with the objective of the CWC, to ensure the elimination of Syria’s CW program as promptly and

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safely as possible.” This authorization was crucial because removal was a key element of the plan for destruction, and, as noted above, transfer would have otherwise been prohib- ited under the CWC.

The language of operative paragraph 10 was not limited to overcoming CWC restric- tions. As a result, the UNSCR could be read to authorize states to transport, transfer, or destroy CW in a manner that might otherwise be prohibited under other aspects of inter- national law in addition to the CWC (including environmental and maritime prohibi- tions), provided that the states involved were doing so “to ensure the elimination” of Syria’s CW “in the soonest and safest manner.”

The domestic legal framework

Each state that participated in the Syria CW destruction effort had to navigate a web of domestic laws regarding, inter alia, regarding, inter alia, importation, licensing, transport, customs procedures pertaining to toxic or industrial chemicals, environmental laws and regulations, and hazardous waste regulations.

Each participating state would need to point to domestic legal authority to expend funds for WMD-related destruction activities or to deploy personnel, or provide materials and/or financial support. In the event the United States contemplated the provision of financial assistance or other material support for a future WMD destruction effort, it would be important to closely review the source of such assistance or support to ensure, among other things, that: (1) US government funds are authorized for such use; (2) there are no funding restrictions attached to the recipient of such assistance or support, including the possessor state and other states that might be participating; and (3) there are no end-user restrictions or requirements associated with the use of such assistance or support.

The United States uses a number of tools to address WMD-related contingencies. These include a set of financial and technical programs known, variously, as cooperative threat reduction (CTR) programs, nonproliferation assistance, or global security engagement. Over the years, CTR

has grown from a DOD-centered effort to include projects funded by the Department of Defense (DOD), the State Department, the Department of Energy (DOE), and the Depart- ment of Homeland Security (DHS) … . Although initially focused on the former Soviet Union, these programs now seek to engage partners around the world. The United States has used its funding and expertise to help secure or destroy dangerous weapons and materials in nations that experience civil strife or regime collapse, such as in Libya, and to prevent their spread outside a conflict’s borders, such as with Syria’s neighboring countries … . Several DOD and DOE programs have helped Russia and the other former Soviet states eliminate nuclear weapons delivery systems and secure nuclear warheads in storage. DOE has also helped Russia strengthen security and materials accounting at facilities that store nuclear materials … DOD has also helped Russia secure and eliminate CW by supporting the design and construction of a CW destruction facility at Shchuch’ye. DOD and the State Department also provide assistance to address concerns about the proliferation of pathogens that might be used in BW. DOD’s biological threat reduction program now accounts for nearly 60% in the FY2014 budget request.41

For the Syria CW destruction effort, the United States had an interagency team of lawyers working through a range of knotty legal issues, including representatives from the State

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Department, the Department of Defense, the Department of Commerce, the Department of Transportation, the Department of Homeland Security (including the Coast Guard), the Department of Justice, the Environmental Protection Agency, and the National Security Council staff, among others. These lawyers did not identify any absolute prohibitions that would preclude US participation in the elimination operation, although they ident- ified some significant legal steps that had to be taken before the activities could commence.

For example, under the Chemical Weapons Convention Implementation Act (CWCIA), it is unlawful for any person knowingly to “develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, [or] possess … any chemical weapon.”42 This prohibition does not apply to these activities, “pending destruc- tion of the weapon,” if that person is “authorized by law or by an appropriate officer of the United States to retain, own, possess, transfer, or receive the chemical weapon.” The State Department worked with interagency colleagues to complete the procedures for authoriz- ing the relevant individuals to participate in the destruction effort.

Similarly, the main implementing statute for the BWC is the Biological Weapons and Anti-Terrorism Act of 1989 (BWTA). Both the CWC and the BWC are also implemented domestically through other legal authorities, including the WMD sanctions provisions in executive orders, penal provisions in the US Code, and agencies’ implementing regulations.

The domestic implementing statutes (the CWCIA and the BWTA) provide for civil and criminal penalties for violations of the laws, prohibitions (which largely mirror the prohi- bitions in the BWC and the CWC), but as illustrated above, the implementing regimes contain exceptions for government actions.43

Because there are a host of additional implementing measures under domestic laws, for example WMD-related executive orders, sanctions legislation, and foreign-assistance pro- visions, and given the various possible scenarios and the complexity of possible US invol- vement, there would need to be an analysis of the applicability of any available exemptions when US participation is under consideration in a WMD contingency.

Lessons for future CW elimination contingencies

There are three primary lessons derived from the above discussion to be applied to future CW contingencies, as well as several additional lessons specific to future missions that may occur in the absence of a UNSCR.

(1) Flexibility, creativity, consistency, and enhancement of a disarmament treaty where possible. Given the urgency of the situation in Syria, the destruction timelines and verifica- tion procedures set forth in the CWC were not well suited to the circumstances. The importance of developing a process for eliminating the declared Syrian CW program quickly and completely empowered the OPCW to take an active role in implementation.

To that end, the international community—in cooperation with the OPCW and auth- orized through UNSCR 2118—expedited procedures for CW destruction and extensive international monitoring and verification, consistent with (and taking advantage of) pre- viously unused provisions of the convention, such as Article IV (8) and Article V (10) of the CWC. Those CWC provisions were specifically cited in Annex A of the Kerry-Lavrov Framework and expressly referenced in the September 2013 EC decision.

For example, according to the CWC, if a state ratifies or accedes to the convention more than ten years after the CWC entered into force, that state shall destroy its CW and CW

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production facilities “as soon as possible.” And “the order and procedures for stringent verification for such a state party shall be determined by the Executive Council.” This language in the CWC established a critical role for the EC of the OPCW, and provided a legal basis under the CWC for the expedited elimination framework. Essentially, by linking the elimination framework to the CWC, the international community was able to ensure that all CWC parties (including Syria) would support the legal capacity of the OPCW and the EC to make destruction-timeline and verification decisions.

(2) Explaining inconsistencies with the disarmament treaty. It was also crucial for the international community to develop a legal basis for removal of the CW by CWC state parties in light of the CWC’s complete prohibition on acquisition and transfer of CW. In order to ensure that elimination would not be subject to legal objections, both the United States and Russia committed to support the adoption of a UNSCR that would provide clear authorization for state parties to participate in the removal and destruction efforts without raising CWC compliance concerns.

Essentially, operative paragraph 10 of UNSCR 2118 authorized UN member states to acquire, control, transport, transfer, and destroy CW identified by the director-general of the OPCW, consistent with the objective of the CWC, to ensure the elimination of Syria’s CW program as promptly and safely as possible.

(3) Linking the treaty body with the United Nations and ensuring compliance. Operat- ive paragraph 8 of UNSCR 2118 was also critical because it linked the OPCW and the United Nations together to implement the CW elimination operation through the Joint Mission, and set up a process that could leverage the organizations’ institutional expertise while respecting the role each played in the international community. Select fea- tures of the EC decision (such as those providing for additional inspections if warranted) and aspects of the UNSCR (such as those imposing legal obligations requiring full cooperation by Syria, including provision of immediate and unfettered access to sites and individuals) accounted for the potential that there might be an intransigent or resist- ant state party. The UNSCR also included a commitment that, in the event of noncom- pliance with the EC decision, the UNSC would “impose measures under Chapter VII of the United Nations Charter.”

The lessons learned from the Syria CW removal operation present important insights for future CW removal contingencies and can serve as guideposts across the disarmament landscape. One of the key features of the Syria CW removal operation was the ability to leverage institutional and stakeholder competency and expertise. By design, the Syria CW removal operation required close coordination between the United Nations, the OPCW, and the international community. It was critical to the credibility of the process and the success of the operation to have the different pieces working together in lockstep. Moreover, because the prohibitions and limitations in the CWC legal archi- tecture introduced a unique set of problems in the Syrian CW destruction effort, signifi- cant time and effort was dedicated to develop a framework to support the mission that was consistent with international and domestic laws.

WMD elimination in the absence of an UNSCR: lessons beyond Syria For policy makers and officials charged with planning future WMD elimination missions, there are five important lessons to consider when a UNSCR cannot be obtained.

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(1) Maintaining the possessor state’s control of WMD. Legally, the categorical transfer prohibitions in the CWC and BWC could be effectively addressed through a UNSCR fol- lowing the UNSCR 2118 approach, but such an approach is not a requirement for the international community to participate in a WMD elimination operation. In a CW case, although a UNSCR strengthens its legal basis, it does not necessarily preclude the option of a OPCW-based approach to approving a plan of destruction, as evidenced in the Austria-Germany case discussed above. To avoid the categorical transfer prohibition under the CWC, a fundamental element of this approach to a WMD elimination operation is legitimate possessor-state control and possession of the CW throughout the course of the operation. How much possession or control is sufficient would have to be determined under the circumstances in question.

(2) Movement of WMD outside the possessor state is not categorically prohibited. Con- versely, there does not appear to be a categorical prohibition on the movement of CW or BW into the territory of another state party for purposes of destruction. This could be rel- evant where, for example, the security environment in a possessor state is exceedingly pre- carious and physical movement of WMD stocks to the territory of another state party (assuming unbroken possession and control by the possessor state party) mitigates the proliferation risk. This could also be the case, as in the Austria-Germany case discussed above, where destruction facilities were unavailable in the territory of the possessor state.

(3) Non-possessor state support and assistance is possible. As long as the plan for the WMD elimination contingency is consistent with the possessor state party’s obligations under the relevant international treaty, the provision of material or financial support by members of the international community in furtherance of such an elimination operation would not be likely to raise additional concerns. For example, as noted above, in Libya, the assistance provided by the international community was in furtherance of the OPCW- approved plan of destruction.

(4) The applicable legal parameters may change depending on the state taking action. A non-party to a disarmament treaty may be subject to one set of legal constraints, while another set of legal parameters may apply to a state party. Indeed, it is important to keep in mind that international treaty obligations exist for all state parties to a particular international legal instrument, even if, for example, a WMD elimination operation were to take place within the jurisdiction of a non-party. For example, transfer of CW from one non-party to another non-party would not violate the CWC, although, of course, there would be compelling policy reasons to object to any transfer of CW between non- parties to the CWC, and there may be stand-alone international legal obligations found, for example, in a UNSCR, that would proscribe such conduct. Transfer from a non- party to a state party to the CWC would result in treaty-based legal implications only for the recipient.44

(5) Different legal tools apply to different degrees of possessor state cooperation. The appropriate legal tools—and attendant legal analysis—will depend, in part, on the posses- sor state involved and level of cooperation from its government. Cooperative action taken by the international community with a permissive government may introduce fewer legal hurdles than actions that are resisted by an uncooperative government or that are taken without the consent of the possessor state. Accordingly, a UNSCR may be more appropri- ate in the event of an intransigent or resistant government that refuses to meet its treaty obligations or that is outside the particular treaty regime.

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Disclaimer

The views expressed herein are the author’s and are not necessarily those of the Depart- ment of State or the United States government.

Notes

1. “The provisions of this Article and the detailed procedures for its implementation shall apply to all CW owned or possessed by a State Party, or that are located in any place under its jur- isdiction or control … [and] “[e]ach State Party shall destroy all CW specified in paragraph 1 pursuant to the Verification Annex and in accordance with the agreed rate and sequence of destruction.” Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction (CWC), April 29, 1997, Article IV(1),(6).

“Each State Party undertakes “to destroy, or to divert to peaceful purposes, as soon as possible … all agents, toxins, weapons, equipment and means of delivery specified in article I of the Convention, which are in its possession or under its jurisdiction or control.” The Convention on the Prohibition of the Development, Production and Stockpil- ing of Bacteriological (Biological) and Toxin Weapons and on their Destruction (“BWC”), March 26, 1975, Article II.

2. The term “weapons capable of mass destruction,” first appeared in the very first resolution passed by the United Nations (UN) General Assembly in 1946. See United Nations (UN) General Assembly Resolution 1(I), “Establishment of a Commission to Deal with the Problem Raised by the Discovery of Atomic Energy,” January 24, 1946. By 1948, an alternate form, “weapons of mass destruction,” became the preferred usage and “disarmament diplo- macy has relied on that definition ever since.” W. Seth Carus, “Defining ‘Weapons of Mass Destruction’,” Center for the Study of Weapons of Mass Destruction Occasional Paper, No. 8 National Defense University Press Washington, DC, January 2012, p. 5.

3. Commission on Conventional Armaments (CCA), UN document S/C.3/32/Rev.1, August 18, 1948, <https://documents-dds-ny.un.org/doc/UNDOC/DER/NL4/835/52/PDF/NL483552. pdf?OpenElement>. See also Carus, “Defining ‘Weapons of Mass Destruction’,” p. 5.

4. This article does not discuss radiological weapons elimination operations because there is no international disarmament treaty that defines the legal obligations or constraints related to the elimination of radiological weapons.

5. CWC, Article I, paragraph 1 (a), emphasis added. 6. Vienna Convention on the Law of Treaties (VCLT), May 23, 1969, Article 31. 7. Although elements such as the preparatory work of the treaty are not included within the

general rules of treaty interpretation under Article 31 of the VCLT, such materials are con- sidered supplementary means of interpretation under Article 32. VCLT, Article 32.

8. Chemical Weapons Working Papers, 1983-1985 Sessions, CD/439. 9. Ibid. 10. Ibid. 11. Chemical Weapons Working Papers, 1983-1985 Sessions, CD/500. 12. Convention on Cluster Munitions, August 1, 2010, Article 1. 13. Ibid, Article 3. See also Convention on the Prohibition of the Use, Stockpiling, Production

and Transfer of Anti-Personnel Mines and Their Destruction in the Convention on the Pro- hibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction, March 1, 1999, Article 1: each State Party undertakes “never under any circum- stances: (a) to use anti-personnel mines; [or] (b) to develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines.” This general prohibition also closely tracks the general prohibition contained in the CWC for banned items.

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14. The Geneva Protocol prohibiting chemical and “bacteriological” methods of warfare has banned their use in war since 1925, and it is widely accepted that such prohibition of use con- stitutes a rule of customary international law. See also Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, March 26, 1975, Articles I and III, <www.opbw.org/ convention/conv.html>.

15. Treaty on the Non-Proliferation of Nuclear Weapons (NPT), March 5, 1970, Articles I and II. 16. CWC, Article I, paragraph 2. Also, the Verification Annex of the CWC includes extensive

requirements for how the CW destruction must be carried out and what verification pro- cedures must be followed, including coordination with and inspection by the OPCW.

17. CWC, Article IV(4); See also CWC Article IV(5): “each State Party shall provide access to any CW destruction facilities and their storage areas, that it owns or possesses, or that are located in any place under its jurisdiction or control, for the purpose of systematic verification through on-site inspection and monitoring with on-site instruments.”

18. CWC, Verification Annex Part IV(A), paragraph C(12). 19. CWC, Article 1, paragraph 1(d)). 20. The transfer and acquisition prohibitions may also affect the ability of state parties to take

samples from the possessor state’s CW stockpile if those state parties seek to transfer samples outside of the possessor state, or if state parties seek to assist others in such transfers.

21. BWC, Article 3. 22. Paragraph 6 of CWC, Verification Annex, Part IV(A) states: “The general plan for destruc-

tion of CW submitted pursuant to Article III, paragraph 1(a)(v), shall provide an overview of the entire national CW destruction programme of the State Party and information on the efforts of the State Party to fulfil the destruction requirements contained in this Convention. The plan shall specify:

(a) A general schedule for destruction, giving types and approximate quantities of CW planned to be destroyed in each annual destruction period for each existing CW destruc- tion facility and, if possible, for each planned CW destruction facility;

(b) The number of CW destruction facilities existing or planned to be operated over the destruction period;

(c) For each existing or planned CW destruction facility: (i) Name and location; and (ii) The types and approximate quantities of CW, and the type (for example, nerve

agent or blister agent) and approximate quantity of chemical fill, to be destroyed; (d) The plans and programmes for training personnel for the operation of destruction

facilities; (e) The national standards for safety and emissions that the destruction facilities

must satisfy; (f) Information on the development of new methods for destruction of CW and on the

improvement of existing methods; (g) The cost estimates for destroying the CW; and (h) Any issues which could adversely impact on the national destruction programme.”

23. The International Atomic Energy Agency (IAEA) was established in 1957 “to accelerate and enlarge the contribution of atomic energy to peace, health and prosperity throughout the world” and to ensure that its assistance is not used to military purposes. See IAEA Statute, October 21, 1956, Article II. In order to accomplish these goals, the agency engages in a host of activities, including: acting as an intermediary for securing the per- formance of services or the supplying of materials, equipment or facilities between two member states; fostering the exchange of scientific and technical information by scientists and experts on peaceful uses of nuclear energy; setting standards of safety for protection of health; acquiring or establishing facilities, plants, and equipment; and “to establish and administer safeguards designed to ensure that special fissionable and other materials, ser- vices, equipment, facilities, and information made available by the Agency or at its

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request or under its supervision or control are not used in such a way as to further any military purpose.” Ibid, Article III(a). The NPT requires each non-nuclear-weapon state to negotiate and conclude with the IAEA bilateral or multilateral agreements on safeguards to verify the fulfillment of its obligations and to prevent the diversion of nuclear materials from peaceful uses to the development of nuclear weapons.

24. De minimis is the legal term indicating the subject is considered too trivial to merit full con- sideration. “Old chemical weapons” are defined under the CWC for purposes of determining which state party is responsible for destroying the CW. In short, the possessor state party has responsibility for destroying “old” CW, while an abandoning state has the responsibility for destroying “abandoned” CW.

25. “Chemical and Biological Weapons Status at a Glance,” Arms Control Association, February 2014, <www.armscontrol.org/factsheets/cbwprolif>.

26. In addition, Austria and Germany noted that the prohibition on transfer needed to be under- stood in the context of the general aims of the CWC, as laid down in its preamble, to act toward “the elimination of all types of weapons of mass destruction” (paragraph 1), “to exclude completely the possibility of the use of CW” (paragraph 6), in order to achieve a “complete and effective destruction” (paragraph 10). The transport of the three shells in this instance thus served to meet the overall purpose of the CWC.

27. In this regard, the Austrian-German paper submitted to the OPCW indicated that “due to the specific circumstances of this case and the small amounts involved, this procedure does not constitute any precedent with regard to the general application of Article I of the CWC.”

28. “Strategic Goal 4: Weapons of Mass Destruction—Performance Results for Performance Goal 2,” Burueau of Resource Management, US State Department, November 2004, <www.state.gov/s/d/rm/rls/perfrpt/2004/html/39014.htm>.

29. Notably, in November 2011 and February 2012, the new Libyan government declared additional quantities of Category 1 and Category 3 CW to the OPCW. The newly declared weapons included several hundred munitions loaded with sulfur mustard agent, together with a few hundred kilograms of sulfur mustard stored in plastic containers. Accordingly, the EC approved a modified plan of destruction. See Chris Schneidmiller, “Libya Sets Sche- dule for Eliminating Chemical Weapons, Nuclear Threat Initiative, May 31, 2012, <www.nti. org/gsn/article/libya-sets-schedule-for-completing-chemical-weapons-disposal/>. See also in this volume, Patrick Terrell, Katharine Hagen, and Ted A. Ryba, Jr., “Eliminating Libya’s WMD Programs: Creating a Cooperative Situation,” pp. 185–96.

30. “Albania the First Country to Destroy All Its Chemical Weapons,” Organisation for the Pro- hibition of Chemical Weapons, July 12, 2007, <www.opcw.org/news/article/albania-the-first- country-to-destroy-all-its-chemical-weapons/>.

31. Cristina Chuen, “Global CW Assistance,” Nuclear Threat Initiative, June 1, 2005, <www.nti. org/analysis/articles/global-cw-assistance/>.

32. Mary Beth D. Nikitin and Amy F. Woolf, “The Evolution of Cooperative Threat Reduction: Issues for Congress,” Congressional Research Service, June 13, 2014, <www.fas.org/sgp/crs/ nuke/R43143.pdf>.

33. Ibid. 34. Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter,

November 13, 1972, Annex 1, para. 10(a) and para. 11. 35. Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes

and Other Matter, March 24, 2006, Article 5, 1(8). 36. Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and

Their Disposal, May 5, 1992. 37. “The Members of the United Nations agree to accept and carry out the decisions of the Secur-

ity Council in accordance with the present Charter.” Charter of the United Nations, October 24, 1045, Chapter V, Article 25.

38. Defense Policy Division, Policy Planning Bureau, “2014 Defense White Paper,” MND 02- 748-6237, Republic of Korea Ministry of National Defense, <http://www.mnd.go.kr/user/ mnd_eng/upload/pblictn/PBLICTNEBOOK_201506161156164570.pdf>.

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39. James D. Fry, “Dionysian Disarmament: Security Council WMD Coercive Disarmament Measures and Their Legal Implications,” Michigan Journal of International Law 29 (2008) p. 242.

40. “Letter dated 11 October 2013 from the President of the Security Council addressed to the Secretary-General,” S/2013/603, October 11, 2013, <www.un.org/en/ga/search/view_doc. asp?symbol=S/2013/603>.

41. Nikitin and Woolf, “The Evolution of Cooperative Threat Reduction.” 42. The Chemical Weapons Convention Implementation Act of 1998, 18 U.S.C. § 229 (1998). 43. The USA Patriot Act of 2001 amended the prohibitions of the BWTA to include the follow-

ing: “Whoever knowingly violates this section shall be fined as provided in this title, impri- soned not more than 10 years, or both, but the prohibition contained in this section shall not apply with respect to any duly authorized United States governmental activity.” Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Pub. L. 107-56 (October 26, 2001).

44. The situation is more complicated for treaty signatory non-parties. Article 18 of the Vienna Convention on the Law of Treaties obligates treaty signatory non-parties to refrain from acts that would defeat the object and purpose of the treaty. The precise contours of states’ obli- gations will differ depending on the agreement and are subject to a complicated case-by- case analysis to determine the object and purpose of a particular agreement and whether a state took action to defeat such an object and purpose.

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