Tag Archive | "United Nations"

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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Critical Analysis: What does territory annexation and secession look like in the modern world?

Russia’s recent annexation of Ukraine raises an interesting question: What is required for legal territory annexation or secession under international law?

crimea-referendum_embed

The UN has declared Russia’s annexation of Crimea illegal under international law and the Ukrainian Constitution. Image: Allvoices.com

It is illegal under international law to annex territory by coercion or force, but the possibility remains that one country can annex the territory of another through “legal” means. Russia’s actions in annexing Crimea have been declared illegal by the United Nations. In its resolution, the UN General assembly noted that the annexation was not only against international law, but contravened the Ukrainian constitution. This implies that Russia may annex Crimea if Ukraine, as a nation, agrees to let Crimea go.

The illegality of Russia’s actions in Ukraine have led the United States and the European Union to impose sanctions against Russia. It remains to be seen whether these actions will have any effect on the Crimean situation.  Russia has responded to these sanctions by saying it has the right to respond “tit for tat.” Russian troops poised on the border with Ukraine are seen as indications that Russia intends to annex the rest of the country, which was formerly a part of the Soviet Union, while Ukraine is in the midst of political crisis. U.S. Secretary of State John Kerry has stressed that no decision about Ukraine’s future can be made without the involvement of Kiev, which has also declared Russia’s annexation of Crimea to be illegal.

Exactly who has a say as to what territory belongs to which country is an interesting question. The Ukrainian government based in Kiev is clearly loath to permit Russia to take over Crimea.  However, Russia did not annex Crimea by force or arms. Instead, a referendum was held and a majority of Crimeans voted to leave Ukraine and join Russia. This referendum is controversial, and the presence of Russian troops in Crimea at the time do not aid its validity.

If armed forces had not been involved, would the Crimea referendum be viewed differently?  Later this year a referendum will be held in Scotland to determine whether Scotland will remain in the United Kingdom or depart from that union to become an independent country. As the debate heats up about the effects of an independent Scotland, many in England have voiced the opinion that Scotland’s independence should not be decided by the Scottish alone.  Although the referendum has the blessing of the U.K. Parliament and Prime Minister David Cameron, many English residents are concerned because they have not been given the chance to voice their own opinion on Scottish independence at the polls.

Is it essential to the legality of territory secession or annexation to have all countries agree to the new border?  Or is it simply enough that no force or coercion is used in the annexation of territory?  As is clear from the Crimea referendum, military presence casts doubt on the legality of a vote.  The international community has also expressed great concern about the lack of Ukraine’s involvement in the referendum. Scotland’s referendum may be a guiding example of peaceful secession and independence under international law, but this remains to be seen.

Laura Wood is Senior Managing Editor of the Denver Journal of International Law and Policy

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Kim Jong-un

North Korea Undeterred by U.N. Sanctions

On April 15, 2013, North Korea celebrated the 101st birthday of its founding leader, Kim Il Sung.   The day was filled with flowers to honor both its founder and current leader, Kim Jong Un; however, North Korea did not take a reprieve from threatening South Korea and the United Nations.  From Pyongyang, North Korea’s capital, the KCNA reported that “[o]ur retaliatory action will start without any notice from now.”   Pyongyang’s comments were directed at South Korea’s protest to the celebrations.

Kim Jong-un

Kim Jong Un, Flexing His Muscles
(NPR)

This is the latest in a long line of threats North Korea has directed at the United Nations and its member countries.  Just a few days ago, Pyongyang threatened that “Japan is always in the cross-hairs of our revolutionary army and if Japan makes a slightest move, the spark of war will touch Japan first.”  North Korea warned that Tokyo would be the first city targeted for a nuclear strike.

While North Korea continues to threaten the United Nations, member countries Japan and the United States remain positive that a peaceful resolution can be reached through talks.  U.S. Secretary of State John Kerry urged the regime in North Korea to stop its nuclear program and hold talks with the United States and Japan.  In response, the KCNA cited North Korea’s military leaders, stating, “If the puppet authorities truly want dialogue and negotiations, they should apologize for all anti-DPRK hostile acts, big and small, and show the compatriots their will to stop all these acts.”   Although North Korea’s media continues to insult and disregard the United Nations, many believe that talks are still a possibility and a resolution can be reached.

However, this has not prevented South Korea and the United Nations from readying for a possible North Korean attack.  South Korean Defense Ministry spokesman Kim Min-seok said South Korea was closely monitoring North Korea’s moves and was ready for any attack.  The North’s threat is “regrettable,” Kim told reporters. “We will thoroughly and resolutely punish North Korea if it launches any provocation for whatever reason.”  Japan, too, launched fighters to protect its capital from the threat issued by Pyongyang.

Regardless, the current United Nations strategy against North Korea continues to have little impact.  Threats and sanctions issued by the United Nations have been met with open hostility by North Korea, resulting in its third nuclear test and continued military preparations by Pyongyang.  Many initially hoped that new sanctions would “bite, and bite hard” against North Korea, but the sanctions continue to have little effect.  Some are beginning to believe that the reality of the situation appears to be different. Chang Yong-seok, at the Institute for Peace and Unification Studies at Seoul National University, believes “The ultimatum is just North Korea’s way of saying that it’s not willing or ready to talk with the South. North Korea apparently wants to keep the cross-border relations tense for some time to come.”

While the United Nations and its member countries continue to wish for a peaceful resolution with North Korea, it appears that peace may be a long way off.

Brad Bossenbroek is a third year law student at the Sturm College of Law, an editor on the Denver Journal of International Law and Policy, and a Publishing Editor for The View From Above.

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Critical Analysis: Proposed United Nations Arms Trade Treaty

The “Knotted Gun” sculpture, by Swedish artist Carl Fredrik Reutersward, on display at the Visitors’ Plaza at U.N. headquarters in New York. (Amnesty.org)

The “Knotted Gun” sculpture, by Swedish artist Carl Fredrik Reutersward, on display at the Visitors’ Plaza at U.N. headquarters in New York. (Amnesty.org)

Governmental leaders began meeting the week of March 18, 2013, to once again discuss the possibility of a U.N. Arms Trade Treaty (Arms Treaty) that would regulate the $60 billion global arms trade.  The desire to create regulations governing the global trade of conventional arms arose in 2006.  The General Assembly of the United Nations began negotiating such a treaty in July 2012 at a U.N. conference held in New York. In December of 2012, the General Assembly voted to continue negotiations on an Arms Treaty.

If passed, the treaty would require all signatory countries to create national regulations to control the trade of conventional arms and the conduct of arms brokers.  Provisions in the current draft of the Arms Treaty do not control domestic use of weapons in each signatory country “except when the trade of conventional weapons would violate arms embargoes or promote acts of genocide, crimes against humanity or war crimes.”  The Arms Treaty, as proposed, calls on each country to determine whether an exported weapon would be used to violate international human rights, humanitarian laws, or be used for corrupt practices including terrorism or organized crime.

The proposed Arms Treaty follows a number of horrific human rights violations and crimes in countries all over the world.  As Amnesty International Secretary General, Salil Shetty, explained, “Syria, Mali, the Democratic Republic of the Congo and Sri Lanka are just a few recent examples where the world bore witness to the horrific human cost of a reckless global arms trade steeped in secrecy.”  However, there is hope as some 108 countries show their support for the Arms Treaty.  Mexico even made a joint statement saying, “the overwhelming majority of (U.N.) Member States agree with us on the necessity and the urgency of adopting a strong Arms Trade Treaty. Our voice must be heard.”

Amnesty International urges that a treaty will only be passed if the five permanent members of the U.N. Security Council—China, France, Russia, the United States, and the United Kingdom—sign on to the Arms Treaty.  The human rights group fears that because the five countries account for more than 60 percent of the global conventional weapons trade, their economic interests in an unregulated global arms market are too high.  Furthermore, the United States serves as the largest arms manufacturer in the world, and pro-gun groups including the National Rifle Association fear potential Second Amendment violations that could result from an international arms treaty.  In addition, pro-gun groups in the United States question the effect such a treaty will have on ammunition, a provision missing from the current draft of the Arms Treaty.  But as Salil Shetty opined, “they have this historic opportunity to save lives – they need to seize it and stop arms from fueling atrocities.”

The United States and other U.N. Security Council members have an opportunity to make great strides for international human rights the Arms Treaty would serve as a sigh of relief for many governmental activists who have been lobbying for international arms regulations for decades.  As Brian Wood, Amnesty International’s Head of Arms Control and Human Rights, explained, “around the world, people are now watching this process hoping their political leaders will not fail them – survivors of armed violence and their communities are crying out for a strong Arms Trade Treaty with clear, universal rules for human rights protection at its core.”

Stacy Harper is a 2L at Denver University Law School and a Staff Editor for the Denver Journal of International Law and Policy.

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Climate Change: Is There Hope for an International Response?

Nearly 200 world nations launched a new round of talks in Doha to review commitments to cutting climate-altering greenhouse gas emissions. (Global Post)

Was Hurricane Sandy the result of global warming?  Many scientists are reluctant to directly attribute this and other recent superstorms to global warming.  However, it is very likely effects from climate change are influencing the severity of these storms.  With the scientific world approaching a consensus that human activity is contributing to climate change, pressure is mounting on the international community to respond.

Delegates, nongovernmental organizations, and environmentalists from over 200 countries are currently converging at the United Nations climate-change summit in Qatar to debate the issue.  The underlying goal of the conference, ending on December 7, is to slow global warming, specifically to “pave the way toward a world treaty, to be signed in 2015, aimed at slowing global emissions of heat-trapping fossil-fuel pollution enough to keep the planet’s temperature from rising by 2 degrees Celsius (3.6 degrees Fahrenheit).”  Scientists fear a sustained increase above two degrees Celsius will lead to a chain reaction of extreme events, such as rapid sea level rise, widespread flooding, extreme weather, and food shortages.

However, skepticism surrounds the summit.  For one, ongoing global temperature increase is feared to be all but certain.  A recent study funded by the National Science Foundation concluded that “[d]espite efforts to reduce greenhouse gas emissions, global warming and a greater increase in sea level are inevitable during this century.”  Also, the summit’s goal of extending the 1997 Kyoto Protocol appears to be losing ground.  The treaty, which expires at the end of 2012, is the only legally binding U.N. pact addressing global warming.  It calls on wealthier governments to limit carbon emissions through restrictions on their businesses and citizens.  However, the U.S. declined to ratify the original treaty, and now others – including Russia, Canada, and Japan – are unlikely to sign the extension.

While the effect of the U.N. summit is currently in doubt, it should be noted that many individual countries are taking domestic action to reduce their contribution to climate change.  For instance, Mexico adopted a national law to reduce carbon emissions by thirty percent from “business-as-usual levels” by 2020, and fifty percent from the 2000 levels by 2050; South Korea approved a mandatory carbon trading program affecting some of its biggest polluters; and the European Union recently put into effect a program to reduce carbon pollution from aviation.  As for the United States, fuel efficiency standards were sharply improved under the Obama administration, and the President has expressed plans to adopt a more proactive approach to global warming during his second term.

However, climate change is a global issue requiring an international response.  Unfortunately the U.N. summit in Qatar appears unlikely to produce immediate results. The only hope is that it will lay a foundation for future cooperation and resolutions.

Frank Lawson is a 4LE and Board Member on the Denver Journal of International Law and Policy

 

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Critical Analysis: United Nations Vote on Palestinian Statehood

This calls for a celebration!

On November 29, 2012, the U.N. General Assembly voted on Palestine’s bid to elevate its status within the U.N.  The resolution was to elevate Palestine’s status from a non-member observer entity to a non-member observer state, which is the same category as Vatican City.  The vote was not a close one.  The 193-member body voted 138 to 9, with 41 abstentions, to elevate Palestine’s member status.  The nine states against the upgrade were the U.S., Israel, Canada, Micronesia, Nauru, Palau, Panama, Marshall Islands, and Czech Republic.

On November 29, 1947, the U.N. recognized Israel and Palestine as two separate states, but then the tables were turned.  At that time, Palestine rejected the partition plan, while Israel supported the plan.  Decades of fighting and tension followed.  The 2012 vote recognizes the Palestinian state as the lands in the West Bank, Gaza, and east Jerusalem that Israel captured in the 1967 Mideast war.  This territory is far less than what the Palestinians were offered in 1947.  The significance of the date, 65 years to the day since the 1947 plan was rejected, is not lost on the Palestinians.  Mossi Raz, a former Israeli lawmaker and veteran activist said, “The choice of date is not accidental.  It’s aimed at correcting a historical mistake.  Sixty-five years ago, the United Nations decided to establish a Jewish state and an Arab state . . . but it never happened.  Today we are completing a historic decision with the establishment of Palestine.”

Though the U.N. vote is not likely to change the harsh realities of the people of Palestine, the Palestinians say the vote is more than symbolic despite their lack of the traditional trappings of statehood.  Palestinians hope the status change and global recognition will provide new leverage in their dealings with Israel.  The Palestinians could also now gain access to agencies and international bodies of the U.N.  Of primary importance is the International Criminal Court, which would enable Palestine to go after Israel for alleged war crimes.

This potential access to the International Criminal Court is a concern for not only Americans but also a particular worry to American ally, Israel.  There is a fear that the Palestinians may instigate an investigation into the practices of the Israeli occupied territory; the practices are widely viewed as international law violations.  American ambassador to the U.N., Susan Rice, was dismissive of the entire vote.  She said, “And the Palestinian people will wake up tomorrow and find that little about their lives has changed, save that the prospects of a durable peace have only receded.”  Secretary of State Hillary Clinton called the vote “unfortunate and counterproductive” because it places “further obstacles in the path to peace” between Palestine and Israel.  Clinton said that the U.S. believes that only direct negotiations between the two parties will lead to the peace they both deserve, two states for two people.

The U.S. has been a staunch ally of Israel for many years.  In 2011 after UNESCO, United Nations Educational, Scientific, and Cultural Organization, accepted Palestine as a member, the U.S. Congress cut off all financing to the organization.  Some argue that the U.S. must continue to be an unwavering ally to Israel because it is the last bastion of democracy in the Middle East and they have been proven a strong military ally.  Others argue that it is not in the U.S.’s favor to continue to support Israel.  The continual favoritism of Israel in peace negotiations with other Middle Eastern countries exacerbates the threat from Islamic Fundamentalist.  The U.S. gives Israel billions of dollars in aid, primarily in military hardware.  Other reasons, such as hypocrisy regarding human rights and oil interests, are also considered in reducing support of Israel.  For now, the U.S. remains a supporter of Israel amidst the global recognition of a Palestinian state.

Sarah Emery is a second year law student and the Business Editor of the Denver Journal of International Law and Policy.

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Critical Analysis: Emerging LGBT Rights Across the United Nations

High Commissioner for Human Rights Navi Pillay (UN News Centre)

On October 2nd, Ukrainian lawmakers passed a law that would imprison a person for up to five years for positively representing homosexuality.  Human rights groups condemned the law as Soviet era oppression, which considered homosexuality a crime. The UN High Commissioner for Human Rights spoke out against the law, stating that the legislation was clearly discriminatory and counter to fundamental human rights.

In the same week, Serbia banned a LGBT parade due to “security” reasons. This is the second year in a row that Serbia cancelled the parade. Serbia cancelled both in response to a 2010 parade that ended in violence. The UN High Commissioner for Human Rights encouraged Serbia to confront prejudice instead of giving into it. The Commissioner highlighted that this was a step back for Serbia’s human rights protection that had made progress in recent years.

The United States is also wrangling over the rights of the LGBT community. Recently the Second Circuit became the second appellate court to rule that DoMA is unconstitutional. The general feeling is that DoMA will end up before the Supreme Court sooner rather than later. If DoMA is upheld, the Court would be denying same sex couples the legal rights of marriage.

All across the world, countries are struggling to ensure the rights of the LGBT community. The UN High Commissioner for Human Rights has not been shy in speaking out against these discriminatory laws. It will be interesting to see over the coming months if the High Commissioner will take on the United States if the US Supreme Court upholds DoMA, or if the Commissioner will reserve condemnation for less developed democracies. 

 Wesley Fry is a 3L and Managing Editor on the Denver Journal of International Law and Policy.

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Critical Analysis: The Role of the United States in Syria

A mortar attack in Akcakale, Turkey, on the border with Syria, killed a woman, her three children and a relative. (NY Times)

The Syrian crisis is a hot topic in the U.S. Presidential election.  Republican candidate Mitt Romney has criticized President Barack Obama’s policies in Syria and suggested that the United States should take a tougher stance on ensuring rebels receive the assistance they need.  So far, the Obama administration has limited its assistance to “non-lethal support,” such as providing communications equipment.  Amidst growing fears that the Syrian government’s crackdown on rebels may spark a regional war between Syria and Turkey, questions are rife in the U.S. political sector as to what role the United States should take in this conflict.

On Wednesday, October 3, the Syrian government shelled Akcakale, a Turkish town on the border of Syria and Turkey, resulting in five deaths.  The victims were all civilian women and children.  Turkey retaliated for two consecutive days, shelling a Syrian military position, and authorizing its troops to move beyond its borders.  The U.N. Security Council condemned Syria for the attack, and urged both countries to exercise restraint.  The Council President, Gert Rosenthal, the ambassador from Guatemala, stated “the members of the council demanded that such violations of international law stop immediately and are not repeated.”  The relationship between Turkey and Syria began deteriorating when Syrian President Bashar al-Assad began cracking down on Syrian protestors, which sparked an 18-month civil war between the government and rebels fighting to oust the Syrian President.  Syria’s ambassador to the United Nations stated that Syria does not seek to fight with Turkey, however, the ambassador called on Turkey to cease allowing armed Syrian rebels to cross the border, as well as to cease allowing media coverage for opposition groups operating from Turkey.

Syria has not confirmed whether the incident in Turkey was a mistake or intentional, but one possible motive behind the shootings is that rebels have allegedly been using Turkey as a safe haven to regroup and rearm.  The rebels are “severely outmatched” and are improvising weaponry, such as taking guns off of Syrian tanks that they have commandeered and mounting them on civilian automobiles.  The increase in improvised weapons is an indication that, without outside assistance, the rebels may be unable to maintain adequate weapons and ammunition.

The Syrian government, on the other hand, has continued to receive arms shipments from Russia, despite calls to from Secretary of State Hillary Clinton and many others in the international community to stop the shipments.  However, the Russian state-controlled arms dealer, Rosoboronexport, stated, “No one can ever accuse Russia of violating the rules of armaments trade set by the international community.”  The dealer further stated that while it continues to supply Syria with mobile gun and missile air defense systems, the contract was signed “long ago,” and the armaments that it supplies to Syria are defensive arms, not attack weapons.

Additionally, Syria continues to receive small arms, infantry weapons, and personnel from Iran, using Iraqi airspace.  In a televised interview between al-Assad and Iran’s intelligence chief, Saeed Jalili, Jalili stated that the situation in Syria “is not an internal issue but a conflict between the axis of resistance on one hand and regional and global enemies of this axis on the other.”  During the same interview, al-Assad stated that it was “unacceptable” that some countries were “supporting terrorism” by arming the rebels in Syria.

If the United States does take a tougher stance on Syria and ensures that the rebels are armed, the implications could be far-reaching.  Iran could interpret U.S. assistance in arming the rebels as U.S. assistance in backing terrorism in Syria, thereby inviting terrorism in return.  Additionally, the possibility still exists that the United States, in arming Syrian rebels, may be arming those who may be terrorists in the future, as happened in Afghanistan.  Given the candidates’ differing stances, the result of upcoming U.S. Presidential election may alter the fate of Syria and the region.

Lisa Browning is a 2LE at the University of Denver School of Law and a Staff Editor of the Denver Journal of International Law and Policy 

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An Interesting Role Reversal in the United Nations

Private Security Guards for Hire
(Int’l Bodyguard Service)

There are several forces that deserve credit for the recently reported worldwide decline in pirate attacks – including international naval patrols, industry best practices, and the monsoon season – but no single force has done more to repel pirates that the use of privately contracted armed security personnel (PCASP). With no successful pirate attacks on PCASP-protected vessels reported to date, the use of these private armed guards is sure to continue, if not increase.

Yet as the use of PCASP at sea has proliferated, the international community has failed to keep pace with the trend and ensure that the industry is held accountable for its actions.

Even some in the industry admit that there is much room for improvement. John Dalby, CEO of Marine Risk Management, Ltd., identifies two basic types of maritime security firms. He characterizes the first as the “Reputables,” consisting of well-trained professionals operating in accordance with national and international law.

The other group, which Dalby calls the “So-calleds,” are characterized as being “ill-disciplined,” “poorly trained,” and having “little or no maritime experience.”  If his description of these troublesome firms is accurate, the moniker he chose is dubious.  These companies are more than merely “so-called” companies; they are actual companies actually patrolling the Indian Ocean.

As for the industry as a whole, Dalby’s feelings are best expressed in the title of his commentary: “The Shambles That Is Maritime Security In 2012.”

The sheer existence of Dalby’s piece sheds a great deal of light on the state of PCASP regulation at sea – a world where private security companies actually want to be regulated, but the international community seems either unable or unwilling to abide.

This role reversal, in which the would-be regulated entity welcomes guidance and the would-be regulator resists, is playing out in the United Nations International Maritime Organization’s (IMO’s) treatment of the International Code of Conduct for Private Security Providers (ICoC).

Signatories of the International Code of Conduct for Private Security Service Providers

ICoC is a mostly private regulatory structure consisting of a set of aspirational principles coupled with an external oversight mechanism, the latter still in the drafting phase and expected in early 2013.

At the heart of ICoC is the notion that norms must be externally enforced and that failure to adhere to agreed-upon norms must be met with some sort of coercive punishment. To that end, the Draft Charter for the external oversight mechanism provides for independent auditing of operations, third party grievance mechanisms, and the possibility of suspension or expulsion from the organization in the case of non-compliance.

Although ICoC was initially created with terrestrial firms in mind, there has been encouraging and impressive uptake from the maritime security sector. Of the 464 signatory companies to ICoC, 285 of them identify as maritime security companies. This almost certainly represents the vast majority of all firms providing private security in the maritime environment.

According to these maritime security firms, ICoC is highly and directly relevant to the provision of maritime security services.

The International Maritime Organization of the United Nations begs to differ. In IMO MSC.1 Circular 1443 published earlier this year, that organization characterized ICoC as “not directly relevant to the situation of piracy and armed robbery in the maritime domain.”  In support of this assertion, the IMO states that ICoC is mere self-regulation and that it was written “only for land-based security companies.”

This first justification is disingenuous and the second is plainly false.

While it is true that no government will assert legislative jurisdiction under ICoC, to call the scheme self-regulation is to give it short shrift.  For starters, the initiative was initially conceived by the Swiss government and has the imprimatur of several states, NGOs and industry. Moreover, as already explained, the ICoC contains an external governance mechanism consisting of independent auditors, third party grievance mechanisms, and measurable standards.

The term “self-regulation” evokes images of lip service to the international community coupled with little change in corporate action. Any fair reading of ICoC and the governing mechanism suggests that this is not likely to be the result of ICoC’s ultimate implementation.

More glaringly, the notion that ICoC was developed “only for land-based security companies” is demonstrably false. The preamble of ICoC says that after developing measurable standards and an external enforcement mechanism, the organization would “consider the development of additional principles and standards for…the provision of maritime security services.” In fact, the Draft Charter specifically provides for the provision of maritime security standards in its description of the Board’s responsibilities.

In short, ICoC was drafted with maritime security in mind, it provides for maritime standards in its governing mechanism, and 61.4% of ICoC’s signatory companies provide maritime services. It boggles the mind to think that, in light of these facts, the IMO could conclude that ICoC was written to the exclusion of maritime security companies.

Criticizing the United Nations in this way feels strange. It is strikingly dissonant to see an organization so frequently criticized (at least in the U.S.) for international regulatory overreach openly reject what appears to be an extremely promising  step toward a workable regulatory framework for PCASP operating in a legal vacuum.

What accounts for this role reversal? Why does the United Nations seem to be standing in the way of an industry that seems genuinely committed to cleaning up its act? I am afraid that looking into this episode has left me with more questions than answers.

Jon Bellish is a Project Officer at the Oceans Beyond Piracy project outside Denver, Colorado (though all of his views are his own). He has experience in United States piracy trials and just got on Twitter.

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