Tag Archive | "United Nations"

The Protestant Ethic and the Spirit of Slavery

If “idle hands are the devil’s workshop,” and if our own hands are not idle when we use machines and other property to do our work for us, then does the resulting prosperity guarantee our salvation? Though the title of this blog is not an entirely fair play on Max Weber’s, The Protestant Ethic and the Spirit of Capitalism, the ownership of human beings as commodities certainly relates to the drive for profit because there is little doubt that unfettered capitalism itself is the result of slavery. However, the intention of this blog is not to point out the good and bad aspects of capitalism; rather, the intention is to point out the prevalence of modern day slavery and how easily we can end it by changing our views on what “success” entails, and by increasing racial and gender equality. We can accomplish this by simply becoming aware of what is happening and how we are each contributing to its continuance.

December 2nd is the United Nations’ International Day for the Abolition of Slavery, and this blog is in observance of that day. The International Day for the Abolition of Slavery is significant because people throughout the world are encouraged to publish material on slavery to raise awareness and combat its continuance.

Modern slavery is defined within International Law as: “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” In plain English, the person is held against their will under the constant threat of injury or death and is forced to work without pay. Slavery exists in every country in the world and includes: sex trafficking, domestic servitude, bonded labor, child labor, and forced labor, among others. Today, it is estimated that there are 35.8 million people held in slavery worldwide, although the actual number is likely much higher.

Increased globalization amplified the profitability of slavery through cheap labor in various parts of the world. Many of the items we use daily, such as cotton, sugar, cocoa, rugs, and bricks are likely to have connection to slavery. Once these items reach the global market, it is difficult to track their source.

The people held in slavery are themselves are viewed as investments and are42418-front-new cheaper today than at any other time in history. They are usually young because the elderly and very young cost more to maintain and cut into revenue. Experts on modern slavery, such as Kevin Bales, describe them as “Disposable People” because they are merely thrown away or killed when they no longer produce enough profit for the owner.

Despite numerous treaties and law abolishing slavery throughout the world, slavery remains. Because of this, we must go beyond the anti-slavery laws themselves and pay closer attention to laws which prohibit discrimination based on race and gender. This is because these are the groups at the most risk of poverty due to discrimination, thereby placing them at increased danger of being taken into slavery.

There are many things we can do to help end slavery as individuals. For instance, we must be aware that it may be happening right next door to us, that we may be purchasing products that are connected to slavery, and we must be willing to pay more for certain products since “low prices” can be deceptive. For instance, with chocolate, low prices make slavery more prevalent because the farmers cannot pay for the labor and the company either goes under or the owners begin enslaving people to produce the cocoa. This is one reason why boycotting certain products can actually contribute to slavery. In other cases, such as carpets and rugs, boycotting is a viable solution as is paying extra for rug labels which provide some assurance that the carpets were not produced through the use of slave labor.

If we remain locked in the iron cage and continue placing profit above all else, believing that “whoever dies with the most toys wins,” we will eventually be unable to continue blinding ourselves to the actual cost.

Bernadette Shetrone is a 3L at University of Denver Sturm College of Law and Staff Editor on the Denver Journal of International Law and Policy

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Grading the United Nations at 70 years old

(Denver Post) By Ved Nanda

The euphoria that accompanied the creation of the United Nations in 1945 has long since



given way to frustration and disappointment. Established in the aftermath of the death and destruction of World War II to “save succeeding generations from the scourge of war,” it has succeeded in preventing another global war, but peace still remains illusory.

Armed conflicts in Syria, Iraq, Afghanistan, Libya, the Congo, Yemen, and other places attest to this grim reality. And the killing fields of Cambodia, the genocide in Rwanda, and the tragedy of Srebrenica show the international community’s failure to make good on its promise.

Benefiting from the experience of the failed League of Nations, the U.N. founders proclaimed in its charter the main purposes: to maintain international peace and security, to promote and protect human rights, and to effectively address pressing international economic and social issues such as development through international cooperation.

For a fair assessment of the U.N. on its 70th anniversary this fall, we need to look at its record in achieving these goals.

Under the U.N. framework, the Security Council, in which the veto power is wielded by five permanent members — China, France, Russia, the United Kingdom and the United States — is primarily responsible for peace and security. The founders envisioned that these five members would provide an umbrella of collective security for the world. That is why these became the only countries exclusively authorized to possess nuclear weapons.

But the Cold War quickly intervened. The U.S. and the Soviet Union — then the two superpowers — were embroiled in a prolonged ideological struggle, which led to an era of client states and proxy wars. The outcome was a paralyzed Security Council and stillbirth of the collective security system. This period lasted until the collapse of the Soviet Union.

At that time, there was renewed promise that the five permanent members (P-5) would work together to fulfill the expectations of the Security Council’s role on peace and security, and the first Gulf War showed a glimpse of that possibility. But the window again closed with Russia and the West at loggerheads on several geopolitical issues.

This tussle notwithstanding, the P-5 have found their interests aligned on countering terrorism, piracy, nuclear nonproliferation, on imposing collective sanctions on Iran, and now the Iran nuclear deal. They have also given their blessings to peacekeeping operations, and President Obama is to host a peacekeeping summit in New York in September. But more often, they disagree, such as on Syria.

Because the collective security apparatus did not work, the U.N. instituted peacekeeping as a band-age for trouble spots. From the early days of U.N. peacekeeping between India and Pakistan, these operations have expanded considerably, now in 16 countries with an enhanced mandate to protect civilians.

More than 100,000 personnel from more than 100 countries are engaged. The operation is costly — $8 billion-plus — and there are tremendous challenges. Critics often point to inefficiencies and abuses in the system, which badly needs clearly defined mandates, selection of peacekeepers based on experience and training, an effective oversight process, and well-defined exit strategies. The value of these operations, however, cannot be overstated.

The geopolitical circumstances have shifted the landscape. The 50 original charter signatories have grown to 193. No longer are peace and security issues confined to conflicts between and among states, as non-state actors such as the Islamic State, terrorists, and criminal elements challenge the traditional structure. And mass migration, climate change, environmental degradation, food insecurity, and violent extremism, among other forces, are major global security problems.

More than 50 million people are forcibly displaced today, and given the tragic incidents of hundreds of asylum-seekers drowning in the Mediterranean Sea and thousands on the move in Europe, the international community is undoubtedly failing them. Will the U.N. system, which is already showing its age, be able to deliver on these challenges?

On human rights, the U.N. indeed has undertaken impressive initiatives. Given the vivid demonstration of the Nazi Germany’s atrocities at home and aggression abroad, the founders realized that peace and security and human rights are inextricably intertwined. Accordingly, human rights found a place of honor on the U.N. agenda. The Universal Declaration of Human Rights, adopted in 1948, followed by binding international treaties on civil and political rights and economic, social, and cultural rights, culminated in an “international bill of rights.”

Since then, a number of international agreements have set universal standards for the promotion and protection of the rights of women, children, indigenous peoples, and disabled persons, for example. International agreements on the prohibition of atrocity crimes — genocide and torture, ethnic cleansing, and war crimes — and the creation of an International Criminal Court to hold egregious violators accountable are attempts to end all impunity. And credit for the independence of dozens of former colonial states goes to the U.N.’s decolonization process.

The U.N. World Conferences on Women — especially the 1995 Beijing Conference — set the goals of gender equality, active participation of women in decision-making, reproductive rights, and voluntary family planning. U.N. Women, a U.N. entity, now has a universal mandate to promote the women’s rights agenda.

Impressive international agreements are now in place on a wide range of other issues of human interaction, including the environment, the Earth’s ozone layer, the oceans, trade, outer space, terrorism, disarmament, aviation and shipping. The U.N. specialized agencies are addressing these issues. For example, the World Health Organization leads the global response to pandemics by creating awareness and mobilizing member states’ quick action on these threats.

The U.N. is attempting to shape a livable future on earth through a “sustainable development agenda,” which envisions linkage between economic viability, social development, and environmental aspects. It is an effort to bridge the initial North-South divide under which the developed states focused primarily on environmental protection, and developing countries on development needs. In 2005, the U.N. adopted the Millennium Development Goals, which focused on reducing poverty, hunger and child mortality, ensuring women’s empowerment, and providing clean water. Many of these goals, set to expire at the end of this year, have been largely met, and in September the U.N. will launch the Sustainable Development Goals, to last until 2030. These goals aim at ending poverty and hunger in all their forms everywhere, achieving gender equality, and ensuring access to clean water, sanitation, and affordable, reliable, and modern energy for all.

Indeed, the U.N. has had spectacular successes and monumental failures. It provides this interdependent world a platform where nations can enter into dialogue and negotiate to resolve their conflicts and address pressing challenges. Undoubtedly the organization suffers from a large bureaucracy, mismanagement, and inefficiency. Its governance structure has pointedly come under harsh criticism, a valid concern, indeed.

Currently the expansion of the Security Council is a contentious issue. Among the P-5 there is no representation from Africa or Latin America. The Asia-Pacific region, which comprises 55 percent of the world’s population and 44 percent of its annual income, has just one representative: China. This calls the Security Council’s legitimacy into question, and on Sept. 14 the General Assembly renewed the efforts for reform.

The veto power, which is responsible for the impasse and hence inaction at the Security Council to solve crises such as Syria, should be altered. But the P-5 defend it, and none would be willing to relinquish it. To illustrate, the Russian ambassador to the UK recently called the permanent members’ right to veto, a guarantee of checks and balances. And any alteration of the U.N. governance structure would require two-thirds of the membership of the General Assembly, 129 votes, not an easy task.

Secretary-General Ban Ki-moon’s term expires at the end of 2016. Jockeying for the job is in full swing. While East Europeans feel that it is their turn and the former president of Slovenia is a strong contender, there is powerful sentiment that the time is ripe for the first woman to take the helm.

There is truth in the cliché that if we did not have a United Nations we would have to invent one. However, while it is accurate that the U.N. can do only what its members will let it do, it must have the capacity to adapt to the changed geopolitical setting and a new economic and social landscape. Crucial questions are how to end red tape and bureaucracy; how to ensure effective monitoring and accountability mechanisms; and how to bring the governance structure in tune with modern-day realities.

Unless they are answered, the U.N.’s capability to effectively address the challenges and crises of the present and future is in question. The United States, which acknowledges the benefits of U.N. membership, must give its full support.

Ved Nanda (vnanda@law.du.edu) is Thompson G. Marsh Professor of Law and director of the Nanda Center for International and Comparative Law at the University of Denver Sturm College of Law.


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Intervention: Altruistic Benevolence or International Tyranny?

John Donne famously declared, “[n]o man is an island.” Similarly, “no state is an island,” as states are inevitably impacted by the actions of others. But does this mean that any connection, however attenuated, justifies one state’s interference with another? Is this kind of interference ever justified? Is there ever an obligation on states to commit just this sort of interference?

(courtesy of K-State IMI data)

Historically, the line that divided benevolent intervention from tyrannous interference was the consideration of whether such interference was necessary to protect a state’s “vital interests.” While the standard of “vital interests” is itself an amorphous concept, the greater concern is whether it is an appropriate standard in the first place. Might not atrocity permit, and perhaps even require, those states with the ability to interfere to do so?

As early as 1933, the Montevideo Convention on the Rights and Duties of States illustrated the efforts of the international community to establish limits on the extent to which countries could interfere with one another. Article XI explicitly provides that “[t]he territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.” Similarly, Article II of the United Nations Charter, passed in 1945, states that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of [a] state.” The general trend at this time appeared to favor non-interference, considering the sovereignty of a state to be absolute.

The Universal Declaration of Human Rights (UDHR), adopted in 1948, suggests a divergence from this mode of thinking. In its prohibition of genocide and war crimes, the UDHR proclaims that it is the responsibility of nations to ensure the “universal and effective recognition and observance” of human rights. However, the implications of this agreement remain abstruse. Is it the responsibility of each state to guarantee these rights only within their own borders, or is it incumbent upon each state to ensure that all other states also adhere to the UDHR? By what guiding principle is a state to adjudicate this dilemma born out of ambiguity and vacillating standards?

The difficulty lies in the collision of sovereignty with the prevention of atrocity. Interference constitutes a breach of sovereignty and it seems that any subsequent agreement made due to such interference would fail to be legitimate. An additional concern therefore is that it would be no mark against the state which violates an agreement made under such duress. But perhaps such a violation of sovereignty is required in the face of large-scale violence. In this context, the question of how many lives a state’s sovereignty is worth remains a haunting question.

While the United States has established that amongst their citizens there is no legal duty to rescue, perhaps a different standard is called for in the international arena. Current international law appears to leave both options open: vigorously protect human rights within one’s own borders only, or unequivocally engage atrocities both foreign and domestic. The burden of this decision rests with the various states as they determine their own statuses in a multifarious world, as there does not appear to be a clear legal answer.

As states struggle to determine precisely what influence they wish to exert, perhaps a guiding principle can be discerned from the Declaration of Independence signed at the birth of the United States: “when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce [the people] under absolute despotism, it is their right, it is their duty, to throw off such government.” If the United States, or any other state, truly believes all people possess a duty to oppose a certain kind of cruelty, it would seem that the answer is clear: violations of human rights are intolerable. Yet the burden remains with each state individually to determine when and how to intervene, as the legal question of whether interference constitutes benevolence or tyranny remains an open one.

Cameron Hunter is a 3L law student and second year master’s student at the University of Denver and is the Survey Editor of the Denver Journal of International Law and Policy.

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Gender-Based Asylum Claims: Why the United States Approves So few


Somali woman and child

Under current asylum law, gender is not a protected ground for asylum. The United States, as well as many other countries around the world, first committed to the international community to protect the rights of refugees when it signed the Refugee Convention in 1951, the controlling international convention in refugee law.  A refugee, according to the Refugee Convention Article 1(A)(2) is an individual “who is outside his or her country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution based on his or her race, religion, nationality, political opinion, or membership in a particular social group.”

Any individual bringing a claim for gender-based asylum must do so under “membership in a particular social group.”  However, merely stating that the individual’s “gender” constitutes as a social group is not enough. The social group cannot be based on the persecution the individual faced, and has to be specific, immutable, and socially visible. There is a fear that if an immigration judge allows a social group that is too broad, it will set precedent for a flood of women to come and claim asylum in the United States.  Women, therefore, have had to describe their social group in convoluted and intricate ways, in order to be as specific as possible to be acceptable to immigration judge.  As one scholar notes, “applicants often define groups in ‘overly complicated and unnecessarily detailed’ ways, including characteristics such as marital status, age, education level, the absence of male protection, opposition to abuse, transgression of social/cultural norms, and past experiences of harm.” These social group formulations are very narrow, sometimes illogical, and almost comical in length.

Claims are especially difficult to bring when the persecution occurs within the private sphere—this means, the government of the country did not conduct the persecution, but instead, the members of the government refused to protect the individual from the violence.  When the persecution occurs within the private sphere, the persecution must be on account of that social group; the persecutor either has or will inflict harm or suffering “in order to punish him [or her] for possessing a belief or characteristic [the] persecutor[seeks] to overcome.”  The asylum seeker must show that the persecutor wanted to persecute her on account of her social group by providing evidence that the persecution occurred, which is often difficult within the private sphere, because there is often no witnesses or evidence.  Women around the world suffer violence, such as female genital mutilation, honor killings,  or domestic violence,  at the hands of their fellow community members because it is “culturally acceptable;” however, when they flee to the United States to avoid this violence, they face many obstacles in getting their asylum applications approved.

Kitty Robinson is a 3L at the University of Denver Sturm College of Law and a Staff Editor on the Denver Journal of International Law and Policy.


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Lawsuit challenges Japan’s high standard for refugees

Fumio Kishida

Japanese Foreign Minister Fumio Kishida, right, visits Zaatari refugee camp near Mafraq, some 8 kilometers (5 miles) from the Syrian border. Credit to: Asian Correspondent. http://cdn.asiancorrespondent.com/wp-content/uploads/2013/07/Mideast-Jordan-Japan_Crav_opt.jpg

In early March, four Syrian men filed a lawsuit against Japan’s Ministry of Justice, challenging the rejection of their refugee applications.  The group arrived in Japan in 2012 and applied for refugee status, citing the potential for persecution for their participation in pro-democracy protests against the Syrian government.  The Ministry rejected their refugee status in early 2013, and instead granted them each a temporary residence permit under a “humanitarian perspective.”  This type of permit allows the men to work full time and to participate in the national health care and other social programs.  But while this seems like a compromise, the permits must be renewed every year, unlike refugee certificates which are permanent; and permit holders are excluded from certain assistance programs such as language training and employment help that the government grants to certified refugees.  Perhaps the greatest disadvantage the lack of refugee status prevents for the Syrians is the difficulty, or near impossibility, it is to get their families into the country.  Their lawsuit seeks to obtain official refugee status and the full rights and protections that it provides.

Japan’s Immigration and Refugee Recognition Act explicitly refers to the 1951 Convention in its definition of “refugee” as well as in the reasons a temporary refuge may be granted at the border.  Further, the Ministry of Justice itself uses the Convention’s definition of a refugee in its guidelines for refugee status.  The Convention defines a refugee as a person who has a “well-founded fear” of persecution.  In practice, the Ministry tends to grant refugee status to those who are in danger of being “personally targeted” by their home government which, according to the lawsuit, is a higher standard than what the Convention requires.

The Convention’s language of having a “well-founded fear” is too vague on its face to offer any sort of guidance, and the term has no further definition anywhere in the Convention.  Instead, the United Nations High Commissioner for Refugees (UNHCR), provides a handbook to “guide government officials, judges, practitioners, as well as UNHCR staff applying the refugee definition.”  In this handbook, the UNHCR considers the term “well-rounded fear” to have both a subjective and objective element.  Subjective in the person’s motivation for seeking the refugee status; and objective in viewing that motivation within the context of their country of origin or what brought about the motivation in the first place.  When considering whether there is a “well-founded fear”, the UNHCR places most of the weight on the subjective element while the objective element provides a context to assess the credibility of the refugee.

With this framework in mind, will the Syrian refugees’ case against the Ministry be successful?  The answer, naturally, depends most notably on the Ministry’s use of “personally persecuted” when determining refugee status.  Assuming that the terms “personally persecuted” mean that the person is being targeted by their home government and will be arrested the moment they step off the plane, it would seem that the Ministry puts more weight on the objective element of having a “well-rounded fear” instead of the subjective element as the UNHCR states.  Indeed, if a requirement for refugee status is to be a target, then this would effectively do away with the term “well-founded fear of persecution” and replace it with “actual persecution.”  Supporting this interpretation are further explanations in the UNHCR handbook.  A refugee’s fear of persecution, according to the handbook, need not be based on their own personal experiences or the fact that they have previously been persecuted.  The fear could be based on persecution of people in a similar situation, or persecution of friends or family.  The UNHCR further considers that “fear” applies both to those who have actually been persecuted and those who wish to avoid being persecuted.  The Ministry’s standard of “personally persecuted” could be found to be incompatible with 1951 Convention and the standards of the UNHCR.

Japan has been a party to the 1951 Convention since 1981 and has given no reservations or declarations to any provision.  As such, the Ministry of Justice should be bound by the provisions in the Convention and it is likely that it has applied a higher standard than is necessary.  If the lawsuit is successful, it will provide hope for the hundreds of refugee seekers who have been denied the status due to Japan’s rigid and restrictive system.

Leonard Large is a 3L at the University of Denver Sturm College of Law and is Candidacy Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Protecting refugees in the midst of war


Destruction in Yarmouk. Credit: HaAretz. http://www.haaretz.co.il/st/inter/Heng/news/images/yar2.jpg

In the early days of April, the Islamic State (ISIS or ISIL) pushed closer to the center of Damascus, the Syrian capital, than they had been able to before.  They did this by seizing the majority of the Al-Yarmouk camp, a large refugee district in the southern part of the city.  The camp had once held 160,000 refugees from Palestine, but since the beginning of the Syrian Civil War, the refugees have dispersed, leaving 18,000 within the camp.

Even before this ISIS invasion, al-Yarmouk was “a humanitarian nightmare.”  The camp was “ruled” by various factions and armed groups, siphoning scarce food away from the refugees and towards the fighters and their families.  For the last two years, the camp has been subject to a siege that has made the food situation even more grave.  Recently, al-Yarmouk had falled under the control of the Syrian rebel group Nusra Front, whom some eyewitnesses say were fighting alongside ISIS, but who has claimed neutrality in the struggle since. Now, the festering humanitarian crisis in al-Yarmouk has somehow gotten worse.  Mere days after this incursion began, reports of killings and beheadings had already circulated.  The Syrian government has dropped several barrel bombs on the camp. Just as deadly, United Nations Relief and Works Agency (UNRWA) has been unable to send its usual food or convoys into the camp since the fighting started.  This means that the 18,000 residents of the camp have no food, no water, and very little medicine.  Moreover, only 93 people have been evacuated, leaving the rest stuck in this deadly zone. If nothing is done, “Yarmouk shall remain a testament to the collective human failure of protecting civilians in times of war.” (Saeb Erekat, as quoted in the New York Times.)

The al-Yarmouk situation sheds light not only on the dangers of ISIS and the plight of Palestinian refugees, but also the inadequacy of international humanitarian law in dealing with such situations.  There is an international obligation to protect refugees (1951 Convention relating to the Status of Refugees; 1967 Protocol relating to the Status of Refugees) as well as an obligation to protect civilians in times of war (The Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949); Additional Protocol I (1977)).  And yet, no one is protecting the 18,000 people trapped in al-Yarmouk.  No one, it seems, is even considered responsible for the 18,000 refugees there.

Perhaps the problem is ISIS itself.  The Geneva Convention is designed to deal with states.  Neither ISIS nor Nusra Front is a state.  Therefore, neither feels bound to protect the civilians in al-Yarmouk.  It is doubtful whether either would even be held responsible for the harm done to civilians in the course of their battle.  While the Syrian government may be held responsible, their attitude (particularly in dropping barrel bombs on the camp) indicates that they feel the refugees are a secondary concern.  So when the state who should be responsible refuses to act to protect the civilians and the non-state actors concerned refuse to “stop the fighting” or let others in to evacuate citizens, who under international law is responsible?

This situation highlights perfectly the need to officially implement a Responsibility to Protect.  Ideally, the United Nations should be able to send in a force to evacuate the refugees, by force if necessary.  If the United Nations cannot or will not act quickly enough, anyone else should have not only the right, but the obligation to do so to protect those 18,000 lives.  But while that reformulation of the law is easy—and indeed, already in progress—the next question is both unsettled in law and difficult practically: where would that nation evacuate those refugees to?  If al-Yarmouk was already a humanitarian mess before the ISIS invasion, what good would relocating those people to another shabby, hastily constructed camp, with minimal food convoyed to them on a daily basis?  Is it as easy to obligate a state to take in 18,000—or 160,000—refugees as to march in and save them from certain death?  Is this not a grave oversight in our conception of both a Responsibility to Protect and our refugee law?

I have no good answers to this, but unfortunately, the refugees of al-Yarmouk do not have the luxury to wait for good answers.  Our international humanitarian law is not equipped to handle this—so we must use the law that we have and create the rest after, based on our victories or mistakes from this situation.  If we do not, al-Yarmouk, as Mr. Erekat has said, “shall remain a testament to the collective human failure of protecting civilians in times of war.”

Samantha Peaslee is a 3L at the University of Denver Sturm College of Law.  She is the Senior Managing Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Germany takes center stage in diplomacy


Credit: http://www.zif-berlin.org/fileadmin/uploads/ueber_zif/bilder/News-Bilder/Logo_Review2014.png

In order to reevaluate its foreign policy approach, Germany conducted a review (“Review 2014”) last year.  Review 2014 included multiple town hall meetings with German voters and debates among foreign policy experts around the world.  Even during Review 2014, voters’ and experts’ opinions and approaches changed.  Initially, the majority of German voters disagreed with the statement “Germany should be more engaged internationally.”  This position changed, however, as 2014 progressed.

When looking back at 2014, and the world events contained therein, it is no wonder Review 2014 transformed.  The Ebola crisis in Africa; Ukraine, Russia, and Crimea dispute; continued fighting between Israel and Hamas; the rise of ISIS; and the revival of the Euro crisis when Greece rebelled against austerity just to name of few, the Western powers were spread thin.  Germany, as France was preoccupied in Africa, the United States involved in the Middle East, and the United Kingdom taking, what some would say, a negligible stance on foreign policy, left Germany to attend to the crises occurring in Europe: Ukraine, Russia, and Crimea and the Euro and Greece.

Chancellor Angela Merkel showed her stamina in diplomacy when working to resolve these disputes.  Chancellor Merkel takes the approach that it is always better to keep talking than to fuel conflict.  Germany’s history essentially forces Germany to take this approach, however.  World War II and the politics surround the Berlin Wall are still too fresh to ignore.  Any fueling of the fire or unilateral action by Germany, automatically brings back feelings of a not so distant past.  Regardless of why Germany and Chancellor Merkel takes this approach, their persistent diplomacy and “ethical” methodology sits well with German citizens.

As a result of these events and Germany’s responses, Review 2014 led to the following goals:

These goals were posted online where Review 2014 encourages visitors to continue the conversation as Germany’s foreign policy evolves.

Review 2014 has evolved into a social platform to discuss and change Germany’s foreign policy approach.  Should other countries use a similar review process to address foreign policy or is this process unique to Germany?  Engaging citizens is never a bad idea and it would not be surprising to learn that the majority of Western citizens likely agree with the statement “speak softly and carry a big stick,” putting diplomacy before fueling a conflict.  However, other Western countries do not need to tread as lightly when making changes to foreign policy because they do not have the same recent tainted past.  Opening up discussions regarding politics to citizens using a social platform appears to be a unique way to communicate with voters, but let’s withhold any firm judgment for 18 months to see what Germany does with the goals from Review 2014.

Alicia Guber is a 3L and the Editor in Chief on the Denver Journal of International Law and Policy. 

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Loss of Culture: Can laws prevent the destruction of antiquities?  

“Without memory, there is no culture. Without memory, there would be no civilization, no society, no future.” – Elie Wiesel


ISIS fighters destroy antiquities in Iraq. Courtesy of Chicago Tonight. hicagotonight.wttw.com/2015/03/10/destruction-antiquities-iraq

Over the course of human history, great and mighty civilizations have emerged, such as the Romans and Aztecs,
only to fall to plague, pestilence or conquest. However, the lasting effects of these civilizations are the archaeological sites and artifacts left behind. Artifacts, like the Rosetta Stone, the Terra Cotta Army, and the David, and ancient ruins, like Machu Picchu, the Coliseum, and the Great Wall of China, give the world insight into how ancient civilizations lived, and contribute to the future development of the human race. Through the discovery and preservation of artifacts such as these, the human race can continue to preserve ancient cultures and ensure that they may help shape the future of humanity.

Recent world events show a lack of regard for preserving these jewels of the past in the 21st century.  For example, the world was recently shocked by Islamic State’s destruction of ancient artifacts and archaeological sites in Syria and Iraq. This is not unprecedented, however, as this type of destruction happens all over the world; not just in the Middle East, but in South America, and China, and is attributable to numerous causes, including urban development and war.

The international community has attempted to ensure the integrity of the world’s cultural sites through the creation of the United Nations Educational, Scientific, and Cultural Organization and two international treaties: the Convention Concerning the Protection of the World Cultural and Natural Heritage and the Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Convention Concerning the Protection of the World Culture and Natural Heritage, also knows the 1972 World Heritage Convention, created the World Heritage List allowing for archeological sites of “outstanding universal value” to be placed on a list that tries to keep the sites protected. For example, the Statute of Liberty, the Tower of London, and the city of Venice are just some of the sites on the World Heritage List. The World Heritage List also includes cites that are in danger, such as the Old City of Jerusalem and its Walls.

Although these safe guards ensure archaeological sites and artifacts are recognized, and the conventions include sanctions which deter member States from breaching the conventions, it is the sovereign duty of each State to ensure that its archeological sites are protected. It is also the duty of each State to bring charges against parties that destroy or harm archaeological sites. In some cases, when a State does nothing to protect a site, or does not punish parties who destroy artifacts, the archeological artifact can be lost forever. Even though state parties to the above-mentioned treaties agree to protect their antiquities, the international community does not enforce its sanctions provisions against states who fail to protect. As of yet, no State has been brought before the International Court of Justice for a lack of protection. For example, China did little to protect artifacts when construction for an IKEA store unearthed an ancient tomb. Although China imposes a fine on companies who destroying ancient tombs, it does not enforce these law strongly, and as a result, an irreplaceable piece of history has been lost. The larger issue is that China was not brought before the ICJ for failure to protect in this case.

The larger issue is that state sovereignty protects most state decisions regarding antiquities. Also, under the treaty, only a State Party may bring a suit against another State Party for violation of a treaty or convention provision. Thus, the principally affected shareholders, like the existing Mayan populations in Belize whose ancestor’s pyramids were destroyed, have no avenue by which to make the State answer for its lack of protection. In most cases, States are able to pressure principally affected stakeholders into forgoing a public fight, likely due to lack of enforcement by the international community. For example, the 1972 World Heritage Convention only asks Party States to “endeavor, in so far as possible” to protect the culture of the State. These archeological sites and artifacts are the backbone of ancient civilizations, and in essence are owned by the people of the State and the existing decedents of those civilizations. Yet, principally affected stakeholder have no recourse to stop the destruction.

So what can be done?

A model that States can follow to ensure preservation of archeological sites and artifacts is that of the United States. The United States strives to ensure the rights to cultural sites and artifacts are given to decedents of the creating civilization. The Native American Graves Protection and Repatriation Act of November 16, 1990 gives the right of ownership over human remains and sacred objects to Native American tribes, after certain requirements are met, such as showing a relationship of lineal descent. Likewise, the Archaeological Resources Protection Act of 1979 protects the archaeological sites and resources of Native American lands. If other States follow a similar model as that of the United States, then the archeological sites and artifacts have a better chance of survival. Even if a State does everything to try and curb the destruction of archeological sites and artifacts, once destruction has occurred, the history, the memory, the civilizations are lost forever.

Teresa Milligan is a 2L law student at the University of Denver Sturm College of Law and is Editor in Chief for the Denver Journal of International Law and Policy.

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soldiers blinded in WWI

The Chemical Weapons Convention: Preventative Measures Against Horror (Part 2 of 3)

This is the second blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  The first blog post described key features of the Chemical Weapons Convention.  This second blog post compares the Chemical Weapons Convention to other sources of international law that address chemical weapons.  The third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.


Part II: International Law Addressing Chemical Weapons

This post analyzes the sources of international law—other than the Chemical Weapons Convention (“CWC”)—that address chemical weapons, and then explains how the CWC provides the strongest protections against chemical weapons.[1]  Both  customary international law and international treaty law provide clear prohibitions on using chemical weapons in international war, and under some interpretations, customary international law prohibits the use of chemical weapons in non-international war.  However, in contrast to the CWC, neither customary international law, nor international treaty law, address the production, stockpiling, or possession of chemical weapons.  First, this post examines the multilateral treaties addressing chemical weapons that predate the CWC.  Next, this post discusses customary international law about chemical weapons.  Finally, this post compares the CWC to the other sources of international law addressing chemical weapons.


A. Multilateral Treaties Addressing Chemical Weapons

chlorine attack in wwi

Aerial photograph of one of the first chlorine attacks on the Western Front in World War I (www.cbwinfo.com)

France and Germany reached the first international agreement on chemical warfare in 1675.[2]  Subsequently, on July 29, 1899, the Hague Declaration Concerning Asphyxiating Gases was created during the First Hague Peace Conference of 1899.  The Hague Declaration expressly prohibited the use of projectiles to disperse asphyxiating gases, but it only applied in instances of war between two or more signatories, which included thirty-two countries.  The second Hague Peace Conference, in 1907, expanded the prohibition on chemical weapons by forbidding all signatory countries from “employ[ing] poison or poisoned weapons.”  Unfortunately, despite these attempts to prevent chemical weapons use, major violations occurred during World War I.  Germany used multiple forms of chemical warfare to fight Allied forces.  Germany’s use of phosgene and chlorine gas during World War I changed the “lethality of chemical warfare forever.”[3]

The 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (the “Geneva Protocol”) prohibited “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices.”[4]  The Geneva Protocol developed during a conference, overseen by the League of Nations, in Geneva from 4 May to 17 June 1925.  The use of chemical weapons during World War I motivated the Geneva Protocol.  The Geneva Protocol restated the prohibitions in the Hague agreements and expanded the prohibition to all use of chemical weapons in international war.  The Geneva Protocol only applies to international war because the parties only “agree to be bound as between themselves”; thus, the prohibition only applies to war between two or more signatory states.[5]  Over the years, General Assembly of the United Nations (“U.N.”) adopted resolutions to show the continued legitimacy of the Geneva Convention,[6] and the Geneva Protocol continues to be a binding source of international law.  The early treaties used broad language that covered both chemical and biological weapons, but later treaties distinguished between the two.[7]  The Geneva Protocol was the strongest multilateral-international-treaty protection against chemical weapons until the adoption of the CWC in the 1990s.


B. Customary International Law Addressing Chemical Weapons

The International Court of Justice Statute treats customary international law as a binding source of international law.[8]  Customary international law, under most definitions, contains two elements: (1) state practice and (2) opinio jurisState practice exists if states consistently and uniformly conform to the same actions.  State practice “does not mean that the practice must be ‘universally followed;’ rather ‘it should reflect wide acceptance among the states particularly involved in the relevant activity.’”[9]  Opinio juris exists if states engage in the relevant state practice “because they believe it is required by international law, not merely because . . .  they think it is a good idea, or politically useful, or otherwise desirable.”[10]  Despite generally agreement about these basic definitions, customary international law “remains an enigma” because of disagreement about some particulars, such as how to identify it.  Establishing the existence or scope of customary international law is difficult because broad customs and practices create it, rather than from “any single, definitive, readily-identifiable source.”[11]

In order to identify and clarify customary international law, the International Committee for the Red Cross (“ICRC”) published a study in 2005 called Customary International Humanitarian Law, which identified 161 rules of customary international law.  Those rules are now available here, in the ICRC’s online database.  Despite criticism from the U.S. government about how the ICRC conducted the study, these rules provide some guidance about what constitutes customary international law.[12]  ICRC Rule 74 addresses the topic of chemical weapons.  According Rule 74, “[t]he use of chemical weapons is prohibited,” and according to Rule 74’s official summary, “State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.”

soldiers blinded in WWI

Soldiers blinded by gas lined up outside a first-aid post near Bethune, France during WWI (International Committee of the Red Cross)

While treaties are generally only binding on the parties to the treaty, treaty rules can become binding on non-parties “as a customary rule of international law.”[13]  Analysts disagree about when a widely adopted treaty becomes binding on third parties, but any U.N. resolution recognizing a treaty as binding on third parties is influential.  For example, in 1969, the U.N. adopted a resolution asserting that the widespread accession to the Geneva Protocol made the use of chemical weapons in international warfare contrary to customary international law.  Specifically, the U.N. resolution “Declares as contrary to the generally recognized rules of international law, as embodied in the [Geneva Protocol], the use in international armed conflicts” of chemical weapons.[14]  The ICRC cited to this U.N. resolution to support Rule 74 as a statement of existing customary international law.  Despite the general consensus that customary international law prohibits using chemical weapons in international wars, scholars disagree about whether Rule 74 accurately represents customary international law regarding the claimed prohibition on the use of chemical weapons in domestic armed conflict.[15]

Essential international organizations, such as the U.N., consider all use of chemical weapons a violation of international law.  The U.N. relies on both the Geneva Protocol and “other relevant rules of customary international law” to enable investigations of both domestic and international use of chemical weapons because the Geneva Protocol only applies to international war.  The U.N. is empowered to investigate allegations of the use chemical weapons by any U.N. member under the Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons.[16]  The enabling General Assembly Resolution refers to both the Geneva Protocol and “other relevant rules of customary international law,” which enables investigations into alleged use of chemical weapons by any U.N. member-state in international war or domestic war.  This framework provides an enforcement regime for the customary international law identified by the ICRC in Rule 74.  As described in the first post and illustrated in the third post of this series, the OPCW also lends its expertise to the U.N. if such an investigation occurs in a country that is not a CWC State Party.


C. Comparison of the CWC and Other Sources of International Law

Past treaties, including the Geneva Protocol, provide fewer protections than the CWC.  None of the early treaties addressed the production, stockpiling, and possession of chemical weapons, which are essential for preventing chemical weapons use.  Unlike the CWC, the “Geneva Protocol does not… prohibit the development, production or possession of chemical weapons”; instead, the Geneva Protocol only prohibits the use of chemical weapons in international war.  Similarly, the Geneva Protocol provides insufficient protection because compliance is voluntary, there is no mechanism to verify compliance, and it, “implicitly, does not cover internal or civil conflicts.”  This is not to disparage the protections of the Geneva Protocol; rather, this is to emphasize the innovations of the CWC relative to earlier protections.  The differences between the two treaties are understandable: Geneva Protocol takes up no more than two typed pages, while the official copy of the CWC is one-hundred eighty-one pages and took more than a decade to negotiate.  Without the earlier treaties—and their shortcomings—negotiators would have been less likely to develop the complex structure of the CWC.  Overall, the more detailed and comprehensive structure of the CWC provides better protections than previous chemical weapons treaties.  Similarly, existing customary international law does not provide the same protections as the CWC.  Irrespective of whether the prohibition on using chemical weapons applies in both international and non-international war, no one claims that customary international law prevents countries from stockpiling, producing, or transferring chemical weapons.[17]


D. Conclusion

In sum, using chemical weapons in international war violates international law, and under some interpretations, using chemical weapons in non-international war violates international law.  Thus, both international treaty law and customary international law  authorize the investigation and prosecution of actual use of chemical weapons.  However, these international investigations and prosecutions occur only after the damage is done and the victims are hurt.  And sometimes they do not happen at all.  By not addressing more than the use of chemical weapons, most sources of international law provide no preventative protections against the horrors of chemical weapons.

While no legal structure can be perfect, the CWC definitely provides better protections than any existing alternative.  The main advancement of the CWC is the ability to ensure that countries do not reach the point of use, by enabling intervention upon mere possession, development, or production of chemical weapons or their precursors.  The proactive CWC requires the destruction of existing chemical weapons stockpiles and prevents the transfer of those chemical weapons to others.  The CWC prevents the use of chemical weapons by eliminating access to chemical weapons.  Events in the Syrian Arab Republic illustrate the difference between the protections of the CWC and other sources of international law.  There, despite knowledge of Syria’s chemical weapons stockpile, the U.N. only stepped in to investigate after reports of actual chemical weapons use surfaced because Syria had not adopted the CWC.  The third and final blog post in this series analyzes those events in detail.


Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy


[1] For a detailed explanation of the CWC, see the first blog post in this three part series.

[2] Megan Eshbaugh, Note, The Chemical Weapons Convention: With Every Step Forward, We Take Two Steps Back, 18 Ariz. J. Int’l & Comp. L. 209, 216 (2001).

[3] James D. Fry, Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention, 31 Mich. J. Int’l L. 475, 481-82 (2010).

[4] Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65.

[5] Id.

[6] See, e.g., Measures to Uphold the Authority of the 1925 Geneva Protocol, G.A. Res. 65/51, U.N. Doc. A/RES/65/51 (Dec. 8, 2010).

[7] Early treaties addressed chemical and biological weapons together, but international law has treated them separately, at least since the adoption of the 1972 Biological Weapons Convention.  Biological weapons are weaponized bacteria or viruses.  Chemical weapons are weaponized synthetic substances.  The first post of this series explains the difference between chemical weapons and biological weapons in more detail.

[8] Statute of the International Court of Justice, art. 38(1)(b), June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 993.

[9] Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (quoting Restatement (Third) of Foreign Relations Law, § 102, cmt. b (1987)).

[10] Id.

[11] Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1015 (7th Cir. 2011).

[12] See generally Noura Erakat, The U.S. v. the Red Cross: Customary International Humanitarian Law and Universal Jurisdiction, 41 Denv. J. Int’l L. & Pol’y 225, 227-29 (2013) (describing criticisms from the U.S. government about the methodological approach used by the ICRC during the study).

[13] Vienna Convention on the Law of Treaties, May 23, 1969, art. 38, 1155 U.N.T.S. 331, 8 I.L.M. 679.

[14] U.N. G.A. Res. 2603-A (16 December 1969) U.N. Doc A/RES/2603 (XXIV) A.

[15] Compare Carsten Stahn, Syria and the Semantics of Intervention, Aggression and Punishment: On ‘Red Lines’ and ‘Blurred Lines’, 11 J. Int’l Crim. Just. 955, 958 (2013) (relying on Rule 74 as accurate customary international law), with Jillian Blake & Aqsa Mahmud, A Legal ‘Red Line’?: Syria and the Use of Chemical Weapons in Civil Conflict, 61 UCLA L. Rev. Disc. 244, 255-56 (2013) (treating Rule 74 as inaccurate and arguing that customary international law only prohibits using chemical weapons in international conflicts).

[16] G.A. Res. 42/37, C, U.N. Doc. A/RES/42/37 C (Nov. 30, 1987).

[17] See Stutts v. De Dietrich Group, 2006 U.S. Dist. LEXIS 47638, at *39 (E.D.N.Y. June 30, 2006) (noting absence of “prohibition on the development, manufacture and stockpiling of chemical weapons” from customary international law).



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emergency response training

The Chemical Weapons Convention: Preventative Measures Against Horror (Part 1 of 3)

This is the first blog post in a series of three blog posts discussing how the Chemical Weapons Convention prevents the use of chemical weapons through proactive measures by prohibiting both the use of and the preparation to use chemical weapons.  This first blog post describes key features of the Chemical Weapons Convention.  The second blog post compares the Chemical Weapons Convention to other sources of international law that address chemical weapons.  The third and final blog post examines recent events in Syrian Arab Republic, as a case study, to illustrate the concepts discussed in the first and second blog posts.


Part I: The Structure of the Chemical Weapons Convention

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction—more commonly known as the Chemical Weapons Convention (the “CWC”)[1]—provides the strongest protection against chemical weapons in international law.  The CWC attempts “to exclude completely the possibility of the use of chemical weapons”[2] by destroying existing chemical weapons stockpiles and preventing production of new chemical weapons.  The CWC’s near-universal implementation and proactive enforcement structure provides the strongest protection in international law against the horrors of chemical weapons.  First, this post provides background on the CWC.  Second, it describes the international organization created by the CWC.  Third, it explains the CWC’s key provisions.  Finally, this post discusses the CWC’s enforcement and verification regime.


A. Background on the CWC

Early efforts at chemical weapons control provided deficient protections, and the CWC developed in response to that deficiency.[3]  The U.N. Conference on Disarmament adopted the final draft of the CWC on September 3, 1992, after twelve years of negotiation.  The CWC opened for signature on January 13, 1993, in Paris.  The CWC entered into force “180 days after the date of the deposit of the 65th instrument of ratification.”[4]  The sixty-fifth country—Hungary—ratified the convention in late 1996; after twenty-two countries ratified the CWC within 180 days of Hungary, the CWC entered into force on April 29, 1997 with eighty-seven State Parties.[5]  The Organization for the Prohibition of Chemical Weapons (the “OPCW”)—the international organization that administers the CWC—started functioning the same day the CWC entered into force.

opcw office

The OPCW office located in The Netherlands (AP)

The CWC faced early academic criticism.  For example, one early article concluded that the CWC “falls short because a significant number of nations with chemical warfare ability have not joined the treaty, these countries have little incentive to join in the near future, and the OPCW has limited powers to react to chemical attacks.”[6]  Nonetheless, the CWC and OPCW developed into formidable institutions.  Today, 190 countries have acceded to or ratified the CWC, leaving just six countries in the world that never acceded to or ratified the CWC.[7]  Additionally, after years of steady progress on the disarmament goals, the OPCW won the Nobel Peace Prize in 2013.

The six countries refusing to ratify or accede to the CWC are Israel, Myanmar-Burma, Angola, Egypt, North Korea, and South Sudan.  Each country’s refusal is troubling, but not necessarily surprising.  In terms of strategic international relations, ratifying the CWC and agreeing to its enforcement regime may not be rational for a state actor because a country that might have chemical weapons may be able to deter attack by enemies, based in part on that uncertainty.[8]  In the words of Sun Tzu: “All warfare is based on deception.”[9]  North Korea’s Kim-family dictators appear to act erratically, but calculatedly, to deter intervention in North Korea.  South Sudan is a war-torn country that is less than three years old.  Israel probably refuses to ratify the CWC to enhance its bargaining position in a region of enemies, particularly since continued non-recognition of the Palestinian state prevents a parallel ratification of the CWC by Palestine.  Some countries on this list probably do not possess chemical weapons, but others almost certainly do.  For example, in Burma-Myanmar, the current regime recently jailed reporters for “disclosing state secrets” by publicizing the government’s current, operating, chemical weapons factories.  Overall, the most striking thing about the list is that the list only contains six countries.  While the OPCW continues to work towards universality of membership, the CWC already applies in full force to 98% of the world.


B. The OPCW: The International Organization Created by the CWC

The OPCW oversees State Parties and redresses violations to supervise CWC compliance.  The OPCW conducted “more than 5,000 inspections in 86 countries” over its seventeen years of existence.  The OPCW monitored ninety-six declared chemical weapons facilities, overseeing the destruction of forty-three and conversion of twenty-two to peaceful purposes.  Some cite this behind the scenes work as the reason the OPCW won the Nobel Peace Prize in 2013—though the OPCW’s work in the Syrian Arab Republic that year certainly helped.

Article VIII created the OPCW, established the OPCW’s headquarters in the Hague, and divided the OPCW’s responsibilities among three organs.[10]  The first organ, the Conference of the States Parties (the “Conference”), consists of all OPCW members.[11]  The Conference oversees CWC compliance, oversees other parts of the OPCW, and redresses violations of the CWC.[12]  The second organ, the Executive Council consists of forty-one rotating members, elected for two-year terms and selected to ensure representation of each geographic region.[13]  One of the Executive Council’s responsibilities is to provide recommendations to the Conference about what measures to take in the event of non-compliance with the CWC by a State Party.[14]  The final organ, the Technical Secretariat, provides administrative and technical support to other parts of the OPCW, and carries out the verification measures described in the CWC, including on-the-ground investigations.[15]


C. Key Provisions of the CWC

Three subparagraphs of the CWC define of chemical weapons.  The first subparagraph covers toxic chemicals and their precursors; toxic chemical means “[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.”[16]  The Chemicals Annex lists the prohibited chemicals and their precursors.  The second subparagraph covers “[m]unitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals” identified in the first part of the definition.[17]  The third part covers equipment specifically designed for use directly in connection with the employment of munitions and devices” identified in part two.[18]  The CWC prohibitions rely on this three-part definition of chemical weapons.  The CWC and the OPCW classify chemical weapons by their “mode of action” on victims, meaning how the chemical enters and affects the body.  Categories of chemical weapons include choking agents, blister agents, blood agents, and nerve agents.

Chemical weapons are distinguishable from biological weapons.  Chemical weapons are generally man-made chemicals, while biological weapons are weaponized versions of naturally occurring bacteria and viruses.  The 1972 Biological Weapons Convention (“BWC”) prohibits the development, production, and stockpiling of biological weapons.  The broad chemical weapons definition in the CWC could be interpreted to include some biological weapons, where the “possible use is similar” for biological agents and chemical agents.  Thus, the CWC states that nothing in the CWC “shall be interpreted as in any way limiting or detracting from the obligations assumed by any State under” the BWC.[19]  The protections of the CWC and BWC complement each other, but the two treaties address different types of weapons.

State Parties only give up the rights the CWC expressly prohibits.[20]  Thus, the CWC contains excruciating detail to protect against chemical weapons.  This produced what one author described as “the most complex disarmament and nonproliferation treaty in history.”[21]  As a starting point, Article I identifies the general obligations of State Parties under the CWC:

1. Each State Party to this Convention undertakes never under any circumstances:

(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;

(b) To use chemical weapons;

(c) To engage in any military preparations to use chemical weapons;

(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.

2. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.

3. Each State Party undertakes to destroy all chemical weapons it abandoned on the territory of another State Party, in accordance with the provisions of this Convention.

4. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.

5. Each State Party undertakes not to use riot control agents as a method of warfare.[22]

Article I prohibits the most troubling aspects of chemical weapons.  Paragraph 1 prohibits State Parties from using, producing, or stockpiling chemical weapons; it prohibits all preparations to use chemical weapons and prohibits facilitating any third party—including non-state terrorist actors—to prepare to use chemical weapons.  Paragraphs 2-4 ensure the destruction of existing chemical weapons and existing production facilities.  Paragraph 5 expressly prohibits the use of riot control agents in warfare, which clarifies that the permitted for use for domestic law enforcement purposes—under Article VI—does not lead to use of chemical agents in warfare.  Moreover, Article XXII expressly prohibits any State Party from making any reservation to the CWC’s terms.[23]  Thus, all State Parties agree to the exact same limitations, including agreement never to retaliate with chemical weapons.

After a country ratifies or accedes to the CWC, the country must secure compliance by public and private actors within the country.  For example, the provisions addressing chemical weapons production facilities “shall apply to any and all chemical weapons production facilities owned or possessed by a State Party, or that are located in any place under its jurisdiction or control.”[24]  This enables the OPCW to oversee the destruction or conversion to peaceful use of both privately and publicly held chemical weapons factories, which includes both chemical factories and munitions factories under the CWC definition of chemical weapons.  State Parties must enact penal legislation to criminalize actions prohibited by the CWC, which ensures the accountability of private actors.[25]  The OPCW website provides suggestions for how State Parties should implement the CWC through domestic legislation and regulations.

The broad definition of chemical weapons in Article II specifically excludes chemicals that are used for a “purpose not prohibited” by the CWC, as long as the type and quantity is consistent with such purpose.[26]  The list of purposes not prohibited by CWC recognizes that some chemicals used in chemical weapons also have legitimate, economically beneficial purposes.[27]  When a State Party wishes to use an otherwise prohibited chemical for any of these non-prohibited purposes, the State Party must submit to verification measures overseen by the OPCW, as described in the next section.

libya chemical weapon destruction facility

Members of the OPCW visit a chemical weapons destruction facility in Libya in Feb. 2014 (OPCW/Flickr)

The most controversial use allowed by the CWC is the exception for the purpose of “Law enforcement including domestic riot control purposes.”[28]  The ICRC criticizes the use of any toxic chemicals for law enforcement purposes, mainly out of slippery-slope concerns about undoing the progress towards chemical weapons disarmament in international law.[29]  The ICRC vice-president expressed concern about any potential use of toxic chemicals by law enforcement in this video.  Others express concerns about the ambiguous scope of the phrase “law enforcement.”[30]  The language of this exception could have been more clearly limited to cover a narrow list of chemical agents—such as pepper spray—to guarantee uniform compliance.  State Parties must declare the possession of chemicals useable as riot control agents to the OPCW, as with possession of any chemical listed in the Chemicals Annex, but they are not required to report when or how riot control agents are used.[31]  However, if the OPCW becomes concerned about how a State Party interprets this provision, Article XIV addresses conflicts of interpretation between a State Party and the OPCW, and Article XV describes procedures for amending the CWC.[32]


D. Verifications, Inspections, and CWC Enforcement

The CWC’s enforcement and verification system monitors disarmament, monitors chemical industries, and undertakes through short-notice inspections.  As described by the ICRC, one “major innovation of the CWC is its intrusive verification regime.”  That regime defines the roles of the State Party and the OPCW before, during, and after the initial implementation of the CWC.  The process starts with State Parties submitting initial declarations to the OPCW, including a detailed inventory and a plan for the destruction of all existing chemical weapons stockpiles and chemical weapons production facilities.[33]  Creating and implementing the destruction plans can be challenging, especially due to the environmental problems inherent in destroying chemical weapons.[34]  Nonetheless, the Verification Annex provides instructions: it outlines the order of destruction for chemical weapons and describes the on-site inspections used throughout the destruction process.[35]

After the initial implementation of the CWC, State Parties must submit to OPCW monitoring whenever a they wished to use otherwise prohibited chemicals for a non-prohibited purpose.  The Annex on Chemicals divides chemicals into three schedules, and verification measures under the Verification Annex vary based on the chemical’s location in the three schedules.[36]  This structure allows the OPCW to certify a State Party’s compliance by monitoring production of chemicals that could become or be used as chemical weapons, even when the intended use of the chemical is not prohibited by the CWC.[37]

State Parties may call on the OPCW to investigate any concerns about another State Party’s compliance with the CWC through a “challenge inspection.”[38]  The challenging State Party submits a request to the Executive Council of the OPCW, and unless concerns about the validity of the request stop the process, preparations for an inspection will begin.[39]  The CWC requires that State Party submit to challenge inspection by the Technical Secretariat, under an accelerated timeline: the inspected party may receive as little as twelve-hours of notice of the inspection team’s arrival.[40]  The challenge inspection contains different procedures for claims the State Party actually used chemical weapons and for claims of other violations.[41]  However, the timeline for responding to a challenge inspection remains the same for all alleged violations; this indicates that the CWC treats production and stockpiling of chemical weapons very seriously.

emergency response training

The OPCW conducts a training course on emergency response to chemical incidents for Asian State parties (OPCW/Flickr)

First, the Executive Council reviews the inspection team’s final report; then, if the report reveals non-compliance with the CWC, it makes recommendations for action to the Conference.[42]  Article XII’s four relatively short and relatively broad paragraphs describe the measures for redressing noncompliance.[43]  By not specifying how to redress specific violations, the CWC enables the Executive Council and the Conference to be creative and to respond with anything from sanctions to aggression.  The OPCW must notify the U.N. General Assembly and the U.N. Security Council of “cases of particular gravity.”[44]  To some extent, this envisions the two international organizations working together.  The OPCW and the U.N. do work together sometimes.  For example, where allegations of chemical weapons use arise in connection with a non-State-Party and the U.N. asks for help, the CWC commands the OPCW “to put its resources at the disposal of the Secretary-General of the United Nations.”[45]  This ensures that the OPCW’s expertise will be available when it may be most vital.

However, nothing in Article XII prevents the Conference from taking collective action more quickly than the U.N. Security Council.  Instead, “where serious damage to the object and purpose of [the CWC] may result from activities prohibited under [the CWC], in particular by Article I, the Conference may recommend collective measures to States Parties in conformity with international law.”[46]  Perhaps the possibility that the U.N. would refuse to act in the face of a situation serious enough to inspire independent action by the Conference is sufficiently unlikely that this will never be an issue.  The U.N. Charter provides the Security Council with “primary responsibility for the maintenance of international peace and security.”  Nonetheless, the option for independent collective action by the Conference could be a helpful alternative to the Security Council veto, in a hypothetical situation involving the use of chemical weapons alongside regional conflicts of interest.


E. Conclusion

The best features of the CWC are the abilities of the OPCW: to interfere in a country’s chemical industry; to oversee both chemical weapons and precursor chemicals; to investigate actions of private and public actors; to monitor the destruction of chemical weapons; to guarantee the destruction, rather than the transfer, of chemical weapons.  Overall, the OPCW prevents the use of chemical weapons by removing them from international commerce and from State Parties.  Sure, the CWC theoretically could be better, but everything could be better: perfection in international law, as in life, is a goal rather than a reality.  But the strengths of the CWC cannot be overemphasized.  As will be shown in the next blog post in this series, the CWC provides exponentially more powerful protection against chemical weapons than other sources of international law.  To show how this system looks in practice, the third and final blog post discusses events before and after the Syrian Arab Republic ratified the CWC in 2013.


Katharine York is a third year law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law and Policy


[1] Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, opened for signature Jan. 13, 1993, S. Treaty Doc. No. 103-21, 1974 U.N.T.S. 45 [hereinafter CWC].

[2] Id. at pmbl.

[3] For more information about other sources of international law addressing chemical weapons, see the second post in this three part series.

[4] CWC supra note 1, at art. XXI.

[5] The CWC refers to countries that have ratified or acceded to the CWC as “State Parties.”

[6] Kevin J. Fitzgerald, The Chemical Weapons Convention: Inadequate Protection from Chemical Warfare, 20 Suffolk Transnat’l L. Rev. 425, 447 (1997).

[7] Countries that were not signatories of the CWC before the CWC entered into force cannot ratify the CWC; however, any country may accede to the CWC.  CWC, supra note 1, at arts. XIX-XX.

[8] See Thomas Schelling, Strategy of Conflict 3-80, 119-61 (1980 ed.) (explaining that the ability to communicate strength—either overtly or tacitly—is essential for deterrence).

[9] Sun Tzu, The Art of War 9 (Dallas Galvin ed., Lionel Giles trans., 2003 Barnes & Noble Classics) (1910).

[10] CWC, supra note 1, art. VIII, para. 1, 3, and 4.

[11] Id. at art. VIII, para. 9.

[12] Id. at arts. VIII, para. 20, XII, para. 1.

[13] Id. at art. VIII, para. 23.

[14] Id. at art. VIII, paras. 35-36.

[15] Id. at art. VIII, para. 38.

[16] Id. at art. II, para. 1-3.

[17] Id. at art. II, para. 1.

[18] Id.

[19] Id. at art. XIII.

[20] Id. at art. VI, para. 1 (“Each State Party has the right, subject to the provisions of this Convention, to develop, produce, otherwise acquire, retain, transfer and use toxic chemicals and their precursors for purposes not prohibited under this Convention.”) (emphasis added).

[21] Urs A. Cipolat, The New Chemical Weapons Convention and Export Controls: Towards Greater Multilateralism?, 21 Mich. J. Int’l L. 393, 394 (2000).

[22] CWC, supra note 1, at art. I, para 1.

[23] Id. at art. XXII.

[24] Id. at art. V, para. 1.

[25] Id. at art. VII, para. 1.

[26] Id. at art. II, paras. 1-4.

[27] Id. at art. II, para. 9 (“‘Purposes Not Prohibited Under this Convention’ means: (a) Industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes; (b) Protective purposes, namely those purposes directly related to protection against toxic chemicals and to protection against chemical weapons; (c) Military purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare; (d) Law enforcement including domestic riot control purposes.”).

[28] Id.

[29] For more information about the ICRC’s contributions to the discussion of customary international law on chemical weapons, see the second post (upcoming) in this three part series.

[30] Benjamin Kastan, Note, The Chemical Weapons Convention and Riot Control Agents: Advantages of a “Methods” Approach to Arms Control, 22 Duke J. Comp. & Int’l L. 267, 271-72 (2012).

[31] James D. Fry, Gas Smells Awful: U.N. Forces, Riot-Control Agents, and the Chemical Weapons Convention, 31 Mich. J. Int’l L. 475, 485 (2010).

[32] CWC, supra note 1, at arts. XIV, para. 2, art. XV.

[33] Id. at art. III and Verification Annex.

[34] See generally David A. Koplow, How Do We Get Rid Of These Things?: Dismantling Excess Weapons While Protecting The Environment, 89 Nw. U.L. Rev. 445 (describing the environmental issues related to destroying chemical weapons and chemical weapons production facilities).

[35] CWC, supra note 1, Verification Annex, Part. IV(A), para. 15 and 37.

[36] Id. at art. VI, Annex on Chemicals.

[37] Id. at Verification Annex.

[38] Id. at art. IX, paras. 8-25.

[39] Id. at art. IX, para. 17.

[40] Id. at art. IX, para. 15.

[41] Id. at art. IX, para. 19.

[42] Id. at arts. IX, paras. 22-25, art. XII, para. 1.

[43] Id. at art. XII.

[44] Id. at art. XII, para 4.

[45] Id. at Verification Annex, Part XI, para. 27.

[46] Id. at art. XII, para 3.



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