CHEMICAL WEAPONS AND THE INTERNATIONAL LAW

 

Introduction

Every life is precious, but some lives are more precious than others; the inequality in application of law brings into question the whole edifice of the international legal framework into question. Two recent incidents bear witness to this. In the first incident, the US along with its allies attacked Syria, on 14th April 2018, for its alleged use of chemical weapons. In the second incident, on 6th September 2018, the United Kingdom took the matter of the use of a chemical agent (Novichok) to the United Nations Security Council (UNSC). Apart from the political and strategic aspects of the two incidents, at the heart of these was the international law related to chemical and biological weapons.

This article will briefly discuss the international law applicable to chemical weapons, and will, then, try to contextualize it with respect to these two incidents.

I. International law and chemical weapons

The international law related to chemical weapons can be summarised in the form of the following points:

Definitional Problem

The international law related to chemical weapons has interlinkages with the laws which regulate biological, radioactive and nuclear weapons. The master treaty of the Chemical Weapons Convention (CWC), 1993, that affirmed all the earlier legal and customary law about the chemical weapons is a dual-purpose treaty that provides a definition of chemical weapons, which is enumerative in nature and does not prohibit the chemical substances, per se. This definitional problem and dual purpose of the treaty that provides for regulation of chemical substances for research and chemical industry is an issue that affects the whole international legal framework dealing with chemical weapons.

Source of law

The legal basis of the prohibition of chemical weapons has two aspects.

1. First, it is found both in the customary law as well as the treaty law. The customary law has its roots in the state practices related to the prohibition of poisonous gases that were introduced in post-World War-I scenario. From legal point of view, the prohibition was codified in the treaty law through Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 1925 (Protocol, 1925). It may be noted that at that time the Protocol, 1925, was negotiated as an instrument to supervise the international trade in arms and ammunitions. The treaty law was then further fortified by the Additional Protocol I, 1977, and finally by the Chemical Weapons Convention, 1993.

2. Secondly, the law relating to the use of chemicals, bio agents, herbicides, riot-control agents, etc. as weapons has been dealt with by the jus in bello (law in war) category that is known as the International Humanitarian Law (IHL). The law is also called the Hague Law within the domain of the IHL.

II. Factual résumé of recent incidents

Having briefly discussed the international law related to the chemical weapons, it will now be ripe to share factual résumé of the two recent incidents that have brought the discussion on the law to the fore in recent days.

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a. The first incident took place on 14th April 2018 when the United States, the United Kingdom and France carried out series of military strikes at different sites in Syria. The strikes were not mandated by the United Nations.

One day before the strikes, i.e. on 13th April 2018, Trump made a statement in which he stated the reason for military strikes. He stated the object of the attack in the following words:

“The purpose of our actions tonight is to establish a strong deterrent against the production, spread and use of chemical weapons. Establishing this deterrent is a vital national security interest of the United States.”

His statement clearly linked the purpose of the US military strikes with chemical weapons. He apparently did it in response to the alleged use of chemical weapons by Assad against his opponents in Douma, Syria.

b. In the second incident, on 4th March 2018, two persons namely Sergei Skripal, 66, and his daughter Yulia, 33, were exposed to Novichok (or newcomer) – a nerve agent – at Salisbury, UK. Due to the exposure, both remained in critical condition. The matter is under investigation by the Organization for the Prohibition of the Chemical Weapons (OPCW) established under the CWC, 1993, and by the local agencies.

The then British Foreign Secretary, Boris Johnson, responded by pointing the finger at Russian President Vladimir Putin. He said:

“We think it overwhelmingly likely that it was his decision to direct the use of a nerve agent on the streets of the UK, on the streets of Europe, for the first time since the Second World War.”

Pending the investigation by the OPCW, the matter was taken to the United Nations Security Council (UNSC). The meeting of the UNSC took place on 6th September 2018, and the UK Representative Karen Pierce, inter alia, asserted that there was enough evidence with the UK’s investigators to charge two Russians for the attack.

III. Analysis

The aforementioned factual résumé along with the response of the countries involved shows:

1. That the international legal order is acknowledged by all the countries. In the instant incidents, the Western countries recognized the rule-based legal regime dealing with chemical weapons;
2. That the countries, despite recognizing the international law, chose to use it politically. The unauthorized use of force by the US against Syria and the announcement of the UK to charge the Russians pending investigation by the OPCW speak volumes about their intentions and motivations;
3. That the polarised response to world problems relating to its international security has weakened the international institutional response. The countries like India and Israel that regularly flout the international legal order will get strengthened from such episodical and non-institutional responses. For example, India is already trying to exploit the institutional legal response built in the Indus Waters Treaty, 1960, whereas, Israel is celebrating its contempt for international legal obligations;
4. On its part, Pakistan has shown consistent compliance to the international law dealing with chemical weapons. It signed and ratified the CWC, 1993. It was swift in nationalizing the international law by promulgating the Chemical Weapons Implementation Ordinance, 2000.

IV. Conclusion

The present world order gets defined in many ways; on the legal plane, it is changing fast due to unilateral stance of the US in many an issue. If the trend persists, the international legal order may get changed sooner than later.