Prohibiting chemical weapons: The short arm of the law

By Erika Schneidereit May 28, 201828 May 2018

Prohibiting chemical weapons: The short arm of the law


In March 2018, the poisoning of former Russian military officer Sergei Skripal and his daughter Yulia on British territory captured the international media spotlight. Reports later claimed that the pair had been exposed to a Novichok nerve agent, quickly leading to allegations that its use constituted a violation of international law. But what international law actually says about the use of chemical weapons, and the options available to states subjected to a chemical attack, is regrettably absent from most conversations on the topic of chemical warfare.

The international legal prohibition on the acquisition and use of chemical weapons is grounded in the Chemical Weapons Convention (CWC), a multilateral treaty with 192 state-parties. Only three states (Egypt, North Korea, and South Sudan) have neither signed nor ratified the convention. This near-universal ratification is impressive given the CWC’s wide-ranging prohibitions – banning use as well as the development, production, acquisition, retention and transfer of chemical weapons. Also targeted is any assistance provided to other states to engage in activities prohibited by the CWC.

Even so, violations of the treaty (or at least, allegations of violations) continue to occur. So what actually happens when states fail to adhere to the strict rules of the CWC?

The answer to this question is likely not as satisfying as advocates of the CWC would like.  The Convention provides for redress mechanisms and measures to ensure compliance, primarily in Article XII. However, these measures lack the elements of clarity and immediacy necessary for them to be of use in the fast-paced political maneuvering that follows a chemical weapons incident. For example, under Article XII (2) where a State’s compliance is in question, the CWC’s Executive Council may request that it “take measures to redress” the situation. When this is not done, the Executive Council may recommend restricting or suspending the State’s rights and privileges under the Convention. But that recommendation uses discretionary language and it falls to the Executive Council (rather than an attacked state) to make the decision on reactive measures, which raises questions about their effectiveness.

To be effective, redress mechanisms must be palatable to politicians. But the idea of a politician faced with a chemical weapons attack going through the bureaucratic hurdles (and political calculations) of bringing the matter to the CWC’s Executive Council seems at best a long-term solution. In the short-term, states have tended to rely on tools more readily at their disposal – for example, economic and diplomatic sanctions or domestic criminal investigations. This reluctance to go through the CWC is perhaps highlighted by the fact that as of 2017, no state party had actually used the challenge inspection procedures set out in the CWC – despite accusations that some states were not been in compliance with the Convention.

Identifying concerns with the CWC’s legal mechanisms for ensuring compliance should not imply that the Convention is irrelevant.  Indeed, the near-universality of the Convention and the infrequent rate at which chemical weapons attacks occur are a testament to its importance. But to increase its effectiveness parties to the Convention must consider whether it provides for practical, as opposed to merely theoretical, remedies. Otherwise future responses to chemical weapons attacks will likely continue outside the four corners of the treaty.

Erika Schneidereit is an articling student with the Department of Justice. The author's views are her and do not represent the views or the positions of the Department of Justice or those of the Government of Canada.

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