- Weapons, chemical — UN Charter — Treaties, interpretation — Arms control — Economic sanctions — Responsibility of states — Responsibility of international organizations — Remedies — Circumstances precluding wrongfulness
(p. 364) (p. 365) Article XII : Measures to Redress a Situation and to Ensure Compliance, Including Sanctions
1. The Conference shall take the necessary measures, as set forth in paragraphs 2, 3 and 4, to ensure compliance with this Convention and to redress and remedy any situation which contravenes the provisions of this Convention. In considering action pursuant to this paragraph, the Conference shall take into account all information and recommendations on the issues submitted by the Executive Council.
2. In cases where a State Party has been requested by the Executive Council to take measures to redress a situation raising problems with regard to its compliance, and where the State Party fails to fulfil the request within the specified time, the Conference may, inter alia, upon the recommendation of the Executive Council, restrict or suspend the State Party’s rights and privileges under this Convention until it undertakes the necessary action to conform with its obligations under this Convention.
3. In cases where serious damage to the object and purpose of this Convention may result from activities prohibited under this Convention, in particular by Article I, the Conference may recommend collective measures to States Parties in conformity with international law.
4. The Conference shall in cases of particular gravity, bring the issue, including relevant information and conclusions, to the attention of the United Nations General Assembly and the United Nations Security Council.
Article XII represents the ‘final stage’ of the Convention’s compliance-control mechanism. It is one of the main instruments of the Organisation to assure or restore compliance with the Convention in situations which contravene its provisions and a keystone of a system of measures designed not only to remedy violations, but also to address non-implementation of the Convention.
Still, the provisions of Article XII also demonstrate that there is a point at which the internal treaty compliance mechanism is essentially exhausted and it is left to the States Parties to take action in concert, or to ‘fall back’ on the UN.
References(p. 366) I. Other means to ensure compliance
Like other international organizations,1 the OPCW has at its disposal several means to persuade a State Party by discussion and consultation to correct its behaviour:
• Article VII, paragraph 5 requires information to be given to the Organisation on the national implementation measures of a State Party. This gives the Organisation the opportunity to draw this State Party’s attention to insufficient or missing measures which might, if not corrected in time, cause issues of non-compliance;
• Article VIII, paragraph 40 necessitates that the Technical Secretariat first tries to clarify and solve a problem through consultations with the State Party concerned before it informs the Executive Council about it. Paragraphs 64 and 65 of the Verification Annex (VA), Part II, prescribe the same approach;
• the method prescribed for activities of the Technical Secretariat in general is also applied to several specific situations: VA-Part IV(A), paragraph 35 (consultations on detailed chemical weapons (CW) destruction plans); Part V, paragraph 36 (differences concerning plans to verify the destruction of CW production facilities);2
• the consultation of the Executive Council with a State Party on a compliance issue in accordance with Article VIII, paragraph 36 provides for the opportunity to convince this State Party that it should remedy a situation of non-compliance.
Another incentive to remedy incorrect behaviour can come from the rules concerning the provision of information to the Executive Council, the States Parties, or the Conference. This will exert a certain degree of pressure on a State Party to change its behaviour, provided the information reveals incorrect behaviour and cannot be covered by, e.g., confidentiality rules.
A similar effect can be achieved by reporting practices of international organizations, by listing those States Parties complying with confidence-building measures or voluntary contributions. This might imply indirect criticism of those abstaining from such contributions. A stronger means is issuing lists of deficiencies or incorrect information of States Parties in reports. The Organisation should, however, be wary of such ‘naming and shaming’ to avoid abuse for political ends.
Of a different nature are measures to discourage breaches of the Convention by denying (military) advantages of non-compliance which a violator aspires to achieve by its wrongdoing. In the Convention, Article X on assistance and protection against chemical weapons is designed to play a role in that regard.
It should be noted that, unlike in nuclear arms control, the concept of deterrence is of no use under the rules of the Convention. Chemical weapons have not been linked to a right of self-preservation or the survival of States. Moreover, self-defence with chemical References(p. 367) weapons, or retaliation in kind in the event of a breach of the prohibition of use, is itself a violation of Article I of the Convention.3
II. Relationship to chapter VII of the UN Charter
In the course of negotiations, concern was raised that measures under Article XII might infringe upon the prerogatives of the UN Security Council under chapter VII of the Charter.4 For the same reason, there was reluctance to label the measures as ‘sanctions’.5 Therefore, originally the term ‘measures to redress a situation’, sometimes with the addition ‘and remedy’, was coined for these kinds of measures. On the other hand, it was emphasized that, often the practice of the UN Security Council had fallen short of expectations in the past, and therefore measures as effective as possible to defend the Convention were needed. There was an understanding that they should complement, but not undermine, the prerogative of the Security Council to address major breaches of the Convention.
The wording of paragraph 4 makes clear that the involvement of the UN, the Security Council in particular, is mandatory in compliance-related instances of particular gravity; but also situations which carry a threat of serious damage to the object and purpose of the Convention, e.g., a State Party violating the Convention through the production of chemical weapons. Without doubt, this may be considered a threat to the peace according to Article 39 of the UN Charter and be counteracted with appropriate measures by the Security Council. This does not mean that action by the OPCW on the violation of the Convention with regard to the same State should a priori be excluded for this reason.
In the Agreement between the OPCW and the UN, both organizations recognize the necessity of achieving, where applicable, effective coordination of their activities and services, to avoid unnecessary duplication. Substantially, there is a mutual information and reporting obligation, as well as a possibility to propose items for the agendas of the respective organizations.6 This arrangement would seem to confirm that even though duplication of efforts should be avoided as much as possible, there is no exclusivity of the References(p. 368) involvement of either the OPCW or the UN in the event of serious breaches of the Convention.
I. The powers of the Conference under Article XII
Paragraph 1 establishes the exclusive competence of the Conference to decide on measures, provided by paragraphs 2, 3, and 4, to ensure compliance and requires the Conference to take necessary measures when a situation contravenes the Convention. Pursuant to this provision, the Conference will have to act when it decides that such a situation exists. This would seem to indicate that there is a general competence of the Conference in considering action pursuant to paragraph 1,7 which shall be based on information obtained by the activities of the Technical Secretariat and submitted to it by the Executive Council. The issue can be dealt with by the Conference either in a regular session or a special session.8
The purpose of measures to be taken is described with the words: ‘to ensure compliance with this Convention and to redress and remedy’. Actions under this Article are required if a situation falls short of compliance. An important part of the obligations of the States Parties under the Convention is procedural in nature and requires institutional and domestic implementation, e.g., initial declarations and reports, domestic legislative acts, establishing a National Authority, and granting access to on-site inspection teams.9 Therefore, ‘to ensure compliance’ is to be understood either as to ensure implementation or as to restore compliance.10 The synonyms ‘redress’ and ‘remedy’ emphasize that the measures to be applied shall serve the purpose of bringing the behaviour of the State Party in harmony with its obligations under the Convention, repudiating at the same time the idea of ‘punishment for the sake of punishment’.
The wording ‘any situation which contravenes the provisions of this Convention’ is rather ambiguous. It stands for ‘behaviour of a State Party not in harmony with its obligations under the Convention’. This circumscription was used to escape the impasse resulting from the disagreement in the negotiations on the question as to whether or not the Conference should be able to establish a violation of an obligation by a State Party. The actual wording does not require such a formal decision. The action is therefore not so much intended as punishment for wrongdoing in the past, as it is meant to add vigour to the demand for correction of its results in the future. It covers, however, all cases of violation of obligations which establish the responsibility of a State Party to accomplish activities, e.g., to destroy production facilities of chemicals weapons, and to have those activities verified by the Organisation. This does not mean, of course, that the response may not vary according to the nature and significance of the breach concerned (e.g., ‘technical’ non-compliance versus a breach of Article I—see further below in Section D.II).
References(p. 369) Paragraph 1 requires the Conference to take relevant information and recommendations of the Executive Council into account. This makes the cooperation of the Executive Council also relevant for action pursuant to the other paragraphs, on the basis of Article VIII, paragraph 36, which is essential for the specific actions of the Conference provided for under Article XII, paragraph 2.
II. Restriction or suspension of rights and privileges
1. Conditions for action
Paragraph 2 sets the conditions under which the Conference may take action: the Executive Council must have requested the State Party to take measures to redress the situation and the State Party must have failed to fulfil the request within the specified time. Appropriate competence is given to the Executive Council under Article VIII, paragraph 36. It is the same provision which stipulates a consultation ‘with the States Parties involved’ as the first measure of the procedure. This rule is binding, since the word ‘shall’ is used.11 Accordingly, Article VIII, paragraph 36 and Article XII, paragraph 2 are interrelated: taking action under Article XII can be considered only after an attempt had been made by the Executive Council to solve the issue by consultation with the States Parties involved. Observance of this procedure is instrumental to prevent unnecessary aggravation of an issue, and to preserve the right of a State Party alleged of a violation to be heard. In that respect, it bears some resemblance to the provisional measures referred to in Article 40 of the UN Charter.
2. The recommendation of the Executive Council
The text of paragraph 2 refers to ‘the recommendation of the Executive Council’. This follows from paragraph 1: the Conference will have to take into account such recommendations in considering the case.12 In practice, on a number of occasions, the Conference has ‘invited’ the Council to make recommendations, indicating that the Conference prefers to learn the opinion of the Council before considering action on a matter that may have implications for compliance under the Convention. Still, the wording of paragraph 1 allows the interpretation that the Conference can take action in the absence of a recommendation from the Council, since the Conference has to ‘take into account recommendations submitted’ by the Council in the event the Conference is ‘considering action’ pursuant to paragraph 1, not ‘before action can be undertaken’ by it.
Apart from the aforementioned conditions, recommendations of the Executive Council are included in paragraph 2 by the wording ‘the Conference may, inter alia, upon the recommendation’. This wording indicates that action by the Conference regarding a State Party’s rights and privileges is dependent on, in principle, the existence of a recommendation of the Executive Council. However, the Conference may diverge from this recommendation and take measures other than those recommended. This seems to be a reasonable interpretation of the text and is also in line with the function of References(p. 370) both organs. Whereas, in practice, the Council has a central role in fulfilling the key functions of the Organisation itself, in particular effective implementation of, and compliance with, the Convention, the Conference has a guiding role and the Council is subordinate to it (Article VIII, paragraphs 19 and 30).
3. Measures under paragraph 2
According to paragraph 2, the Conference may restrict or suspend the State Party’s rights or privileges until it undertakes the necessary action to conform with its obligations under the Convention. This wording emphasizes that the sole purpose of such measures shall be to re-establish compliance. To impose sanctions at a moment when a State Party had corrected its behaviour, thus conforming to its obligations, would be in conflict with this provision. It is probable that in order to terminate the sanctions the Conference will have to decide that the State Party is again in compliance.13
The Convention exempts one important measure from the possibility of restricting or suspending a State Party’s rights and privileges: the deprival from membership is excluded by Article VIII, paragraph 2, which reads: ‘A State Party shall not be deprived from its membership in the Organization.’ There are sufficient reasons for an interpretation to the effect that this also excludes the suspension of membership, or a cumulative suspension of all major rights and privileges of membership.14
By withholding selected benefits of membership, the Conference will be free to choose among several possibilities. The attempt made during the negotiations to draw up a list of possible sanctions corresponding with specific infractions failed. It was realized that, especially when it comes to serious violations of obligations under Article I, there might be no adequate reaction that could be defined in advance. In this regard, a significant difference between an organization for the implementation of a disarmament treaty and organizations for economic assistance cooperation and development became obvious. The latter can restrict or suspend economic services and benefits deriving from membership and put financial pressure on its members. However, for the OPCW, those measures are only available in a few cases, e.g., when the ‘right to participate[,] in the fullest possible exchange of chemicals, equipment and scientific and technical information’ granted by Article XI was suspended and the Conference recommended to the members restrictions in trade with chemicals, equipment, and know-how.
Examples were discussed in which the violation of a right entailed the suspension or restriction of a right. In one case, this has crystallized into a specific provision: Paragraph 22 of Article IX mandates the Executive Council to ‘address any concerns as to: … (b) Whether the request had been within the scope of this Convention; and (c) Whether the right to request a challenge inspection had been abused.’ The following paragraph 23, after referring to the possibility of taking appropriate measures to redress the situation References(p. 371) and to ensure compliance, including specific recommendations to the Conference, closes with the sentence: ‘In the case of abuse, the Executive Council shall examine whether the requesting State Party should bear any of the financial implications of the challenge inspection’. If the Executive Council finds that a request was frivolous a corresponding recommendation would aim at charging a State Party the costs of a challenge inspection.
Other examples in which violations might entail the restriction or suspension of specific rights or privileges are:
• a State Party which fails to comply with cooperation requirements for an inspection team, pursuant to VA-Part II, paragraphs 35 and 36, could be charged with the additional costs incurred by its non-compliance;
• the right to be informed by the Organisation can be restricted or suspended for a State Party not complying with its obligation, pursuant to Article VII, paragraph 6 and the Confidentiality Annex, paragraph 4, to protect the confidentiality of information provided for it by the Organisation;
• the right to participate in the fullest possible exchange of chemicals, etc. pursuant to Article XI, paragraph 2(b) can be restricted regarding Schedule 2 chemicals when a State Party fails to comply with the provisions of VA-Part VII, paragraphs 31 and 32, concerning the transfers of such chemicals to States not Party to this Convention;
• the right to receive assistance and protection against chemical weapons pursuant to Article X could be restricted—e.g., the right to receive assistance by the Technical Secretariat to improve protective programmes against chemical weapons could be suspended when a State Party abused the assistance to better protect its own troops in preparing for their use of, e.g., riot control agents (RCAs) as a method of warfare.
The fact that the Convention does not contain any provisions earmarking possible sanctions for violations of specific obligations gives ample flexibility to the Executive Council and the Conference to react in an appropriate manner to the specifics of a case. This flexibility is, of course, limited by the prohibition contained in Article VIII, paragraph 2 (see above) and by the general principle that proportionality will have to be observed between the unlawful behaviour and the Organisation’s reaction to it.15 Proportionality of the response is also suggested by the scale of increasing seriousness of the possible violations described in Article XII (from ‘a situation’ in paragraph 2, to ‘serious damage to the object and purpose’ in paragraph 3, to ‘cases of particular gravity’ in paragraph 4).
III. Recommendation of collective measures
1. Conditions for action
The cases are qualified by paragraph 3 regarding the gravity of their possible results. A preceding decision of the Conference on the restriction or suspension of rights or References(p. 372) privileges pursuant to paragraph 2 is not required. Logic dictates that issues under paragraph 3 require the same procedural preconditions as under paragraph 2, namely: consideration by the Executive Council pursuant to Article VIII, paragraph 36, in which the Council consults with the States Parties involved, and requests the State Party under scrutiny to take measures within a specified time. Failure of the State Party to comply with the request within the time-frame means that the Executive Council can make recommendations to the Conference in accordance with paragraph 36(c). The Executive Council may organize meetings on any matter affecting the Convention and its implementation, including concerns regarding compliance and cases of non-compliance.16
The Conference must conclude that ‘serious damage to the object and purpose of this Convention may result’ from the activities under its consideration.17 The ‘object and purpose of the Convention’ is the worldwide ban of chemical weapons, especially their use, effectively verified by an international organization. The wording ‘in particular by Article I’ stresses the importance of the obligations contained in Article I for the object and purpose of this Convention, and hence supports an assumption that serious damage to object and purpose results from violations of those obligations, albeit not necessarily from every such violation.
With the CWC moving closer to fulfilling the objective of eliminating (declared) chemical weapons stockpiles and production capacities, the objective of preventing the acquisition of chemical weapons and their production capacities is becoming increasingly important. This may be considered as a change of focus under the object and purpose of the Convention, namely from disarmament to preventing re-armament or the re-emergence of chemical weapons. In that respect, the use of the term ‘non-proliferation’18 is a reminder of the non-universality of the Convention rather than a suitable term for describing the objective of preventing the spread of chemical weapons stockpiles and production capabilities in the system of the Convention, where such weapons and capabilities are supposed to be, and to remain, totally absent.
2. Measures under paragraph 3
This paragraph gives the Conference the right to recommend collective measures to States Parties. ‘To recommend’ entails an appeal which is not legally binding—compare with, for instance, the UN Charter, where recommendations of the Security Council, e.g., made under Article 39, are not of a binding nature.19
References(p. 373) The wording ‘in conformity with international law’ carries the message that the prerogatives of the UN Security Council should be respected, and that the measures shall comply with general international law—in particular, that they shall not involve the use of force.20 It means, inter alia, that it is not up to the Conference to recommend (military) force as a sanction, which can be applied exclusively by the UN Security Council under Article 42 of the Charter. The situation is different regarding Article 41. Here, the partial interruption of economic relations or the putting of bank accounts under sequester can be within the range of measures considered by the Conference. The foregoing also means that a recommendation, by the Conference of States Parties, to use force in collective self-defence21 cannot alter the fact that the legality of such force, in accordance with the UN Charter, Article 51, is dependent on the existence of an armed attack by, or attributable to, a State. It has been suggested that the ‘collective measures’ in Article XII, paragraph 3 were probably not conceived as sanctions (a reference to sanctions in this paragraph in an early draft of the Convention was deleted), at least not as sanctions in the sense of collective measures by the UNSC (to which Article XII, paragraph 4 already relates), but rather to collective countermeasures or something in the grey zone between sanctions and countermeasures.22
Violations of obligations contained in Article I may well be qualified by the UN Security Council as a threat to the peace in accordance with Article 39 of the UN Charter. However, as mentioned, this does not necessarily exclude measures of the Organisation pursuant to Article XII. A recommendation to the States Parties, monitored by the Organisation’s verification mechanism, to withhold from the malefactor any relevant exports of chemicals, technical equipment, and scientific-technical know-how, can be regarded as a measure within the scope of the Convention. This results from Article I, VA-Part VI, and other provisions.23 Measures of this kind recommended by the Conference, in order to counteract a violation of Article I, can successfully complement sanctions of the Security Council. They would serve as a measure of coercion, vis-à-vis a State Party which was insensitive to demands to bring its activities into compliance with the Convention and deprive it of the means needed to carry out its unlawful activities. While not legally binding in a formal sense, such a recommendation will likely have References(p. 374) considerable authority. Since such a recommendation would imply that any cooperation in the chemical field with the State Party in question would further activities not permitted under the Convention, any State Party ignoring such a recommendation would run the risk of being accused of disregarding its obligation under Article I, paragraph 1(d), namely, ‘never, under any circumstances … to assist … in any way, anyone to engage in any activity prohibited to a State Party under this Convention’.
Under paragraph 4, the Conference must (‘shall’) ‘in cases of particular gravity’ bring the issue to the attention of the UN General Assembly and Security Council.24 This paragraph has a different character from measures contained in paragraphs 2 and 3, even if the ‘conditions for action’ required under paragraphs 2 and 3 are also applicable for actions to be taken under this paragraph. However, there is neither an additional requirement for the Conference to have taken measures pursuant to paragraph 2 and/or paragraph 3, nor is the Conference held to take such a measure together with a decision pursuant to paragraph 4.
Article XII, paragraph 4 is one of the provisions in the Convention that implicitly makes a relationship agreement with the UN necessary.25 The relationship agreement between the OPCW and the UN, which was approved in 2001,26 stipulates in Article II that cooperation between the two requires that: (a) cases of particular gravity and urgency, in accordance with Article VIII, paragraph 36 of the Convention, shall, including relevant information and conclusions, be brought directly to the attention of the General Assembly and the Security Council by the Executive Council, through the Secretary-General in accordance with the existing UN procedures; (b) cases of particular gravity, in accordance with Article XII, paragraph 4 of the Convention, shall, including relevant information and conclusions, be brought to the attention of the General Assembly and the Security Council by the CSP through the Secretary-General in accordance with the existing UN procedures.
Since the Executive Council is empowered, pursuant to Article VIII, paragraph 36, in case of urgency, to take the same decision as provided for in Article XII, paragraph 4, the question of the relationship between the two provisions arises. In the OPCW–UN Relationship Agreement, no principled choice or following-order between either of the procedures is made. Bringing a case to the attention of the UN may result from a relevant decision of the Executive Council which, compared with the Conference, is better References(p. 375) prepared for a swift and flexible reaction.27 The UN Secretary-General, or a designated Representative, shall be invited by the Chairman of the Council to attend meetings while matters of common interest to the OPCW and the UN are being discussed.28 For these reasons, there will hardly be grounds for a second decision by the Conference. However, additional information about the factual circumstances of the case and the conclusion, resulting from the case being considered by the Conference, could become relevant or necessary. Providing such information would have to be presented as an endorsement and follow-up of the Council’s decision rather than as a new decision by the Conference under paragraph 4.
By taking a decision provided for under paragraph 4, the Conference would express its conclusion that the case, because of its particular gravity, is to be brought to the attention of the UN. The assessment of the ‘particular gravity’ will be influenced by three factors: the character of the violation, especially if it concerns one or more activities prohibited by Article I; the extent of those prohibited activities; and, possibly, the attitude of the State Party regarding measures taken by the Organisation.
The decision will also have to determine what additional information is needed. This relates to: the factual circumstances of the violation; the evidence acquired by the Organisation in this regard; the measures taken so far by the Organs of the Organisation in this case; their results; and the conclusions drawn by the Conference. The wording ‘information and conclusions’ is the result of a compromise, resulting from a lack of agreement on the wording ‘information and recommendations’. The aim was to enable the Conference to express its opinion on the case, without creating the impression of trying to prejudge the outcome of the consideration of the case by the UN General Assembly or Security Council.
There is no reported practice of use of the provisions and mechanisms of Article XII. At the Second Review Conference of the Convention, it was noted with satisfaction that no case of non-compliance had been brought to the attention of the Executive Council.29 Also, no challenge inspection or investigations on alleged use have been requested since the entry-into-force of the Convention.30 The only ‘situation’ which required ‘redressing’ that found its way into the OPCW’s official records was related to the need for increasing the initial declaration activities of the States Parties.31 Even though the References(p. 376) Conference invited the Council to make recommendations to ‘redress’ this situation, at the Fifth Session of the Conference, it was noted with approbation that expressing concern by the Conference and the Council had resulted in effective action, and that all States Parties had fulfilled their initial declaration obligations.32 A visit by OPCW inspectors in Libya after the violent change of government in 2011 took away concerns about the status of the chemical weapons stockpiles still to be destroyed by that State Party.33
Very few allegations of non-compliance with the Convention seem to have been made; at least, known examples are quite rare.34 Only during the First Review Conference, the US alleged that two States Parties, Iran and Sudan, were actively pursuing chemical weapons programmes. Iran issued a reply denying the allegation. No further action was taken by OPCW organs. In 2002, the use of gas by Russian security forces to end a hostage situation in a Moscow theatre raised questions, but no more than extensive media coverage resulted.35 The same happened when, in 2003, the US Defence Secretary was seeking to include the use of non-lethal agents in the rules of engagement for US combat troops in Iraq.
A continuing compliance-concern is in the rate of destruction of chemical weapons (and production facilities). Extensions of the obligations to destroy have been granted by moving the deadlines for complete destruction of chemical weapons.36 This was, of course, one way to redress the problem before it could turn into a situation of serious concern or non-compliance. New time limits logically can be agreed within the Organisation. Similarly, should States join the Convention after the final destruction deadlines have passed, in the event of them declaring stockpiles of chemical weapons and production facilities, this will require a new agreement on time limits for (phased) destruction. Even though the question can be raised whether Possessor States have always been realistic about the probability, or the possibility, of meeting the extended deadlines, granting extensions seems to be the proper response in cases such as these which can be explained by the inability of States Parties to comply with deadlines instead of their unwillingness to do so. Over the years, all possessor States Parties have experienced delays at times, caused by such factors as technological difficulties, legal hurdles, safety issues References(p. 377) that needed to be resolved, or financial and managerial problems that needed to be addressed.37
Still, there have been tensions regarding suggestions for improving the destruction-rate of chemical weapons for possessor States Parties38 and, more than once, concern was expressed, not least by the possessor States Parties themselves, that they—above all, the US and Russia—could not meet the deadline of 29 April 2012, i.e., 15 years after the CWC’s entry-into-force, which is set forth in the Convention as the ultimate deadline for the complete destruction of chemical weapons.39 In 2009, an informal consultation process was started by the Chairperson of the Council on how and when to initiate the discussion on issues related to meeting the final extended deadlines.40 In December 2011, the Conference decided that if the deadline of 29 April 2012 is not (fully) met, there continues to be an obligation to destroy remaining stockpiles of chemical weapons ‘in the shortest time possible’, in accordance with the provisions of the Convention, and verified by the Technical Secretariat.41
This important decision (C-16/DEC.11) reaffirms the importance of the final deadline, but does not say that possessor States Parties that failed to meet the deadline would be violating the terms of the treaty, since a lack of timely fulfillment of the treaty obligations is not the result of bad intent. It is stipulated in the decision that possessor States (the US, Russia, and Libya) that fail to meet the deadline must submit a detailed plan for the destruction of their remaining chemical weapons, for each annual period and planned destruction facility, including a planned completion date. The Director-General shall report at each regular session of the Council on the overall destruction progress on the basis of the information received by the Technical Secretariat through on-site inspections. Annual review of the implementation at specifically designated meetings of the Conference (special conferences) shall complement the reporting in the sessions of the Council. The Possessor States concerned are to invite the Director-General and a delegation of the Council to undertake visits to obtain an overview of the destruction programmes. The Possessor States’ invitations shall be extended to observers to participate in the Council delegations and the visits will include meetings with parliamentarians and government officials.
(p. 378) The Third Review Conference recalled that the destruction of the remaining chemical weapons by possessor States Parties should continue in accordance with the provisions of the Convention and its Annex on Implementation and Verification ‘and with the application of the measures contained in decision C-16/DEC.11’, thus underlining the ‘absorption’ of the commitments undertaken in that decision into the obligations pursuant to the Convention.42 The Review Conference also noted the Report by the Director-General in which he stated that he is in the position to confirm that the three possessor States (Libya, Russia, and the US) have taken the necessary measures to meet the planned completion dates for their destruction activities.43
Clearly, the passing of the final deadline does not mean that the obligation to destroy is weakened. Discussions about this Article I obligation have even proved to be the starting point for an extensive set of measures to be implemented by the States Parties, which are concerned with, according to detailed plans, reporting obligations to the Council and to special sessions of the Conference. Moreover, this includes the involvement of the Technical Secretariat for the verification of the progress made, as well as visits of the Organsation’s representatives, and includes a role for government officials, parliamentarians, and observers, e.g., from civil society. As such, this integrated approach may be a model for the solution of other outstanding implementation issues, such as the position of RCAs under the Convention (the interpretation of Article II.9.d); the prevention of the emergence of new chemical weapons, especially incapacitants; and the harmonization of national measures adopted pursuant to Article VII.
A question that deserves separate attention is whether the provisions of Article XII indicate that reactions in the event of non-compliance are intended to be found in the Convention only, with complete exclusion of a fall-back on general international law remedies, including the resort to countermeasures—a so-called self-contained regime.44 As self-contained regimes imply an exception to the principle of the residual applicability of general legal consequences of internationally wrongful acts, it would seem that proof of the ‘self-containment’ of a treaty regime must be found in the treaty text.45 In that regard, there is no doubt a priority of the Convention-based measures in the event of (potential) non-compliance, but not necessarily exclusivity. The text of Article XII, especially of its paragraphs 2 and 3, does not indicate that a full and exhaustive set of References(p. 379) secondary rules has been created, excluding States Parties from taking enforcement measures under general international law to redress a situation and to ensure compliance. Paragraph 3 does not create any powers for the OPCW beyond possible non-binding recommendation of measures that are available anyway under general international law. Paragraph 2 is limited to possible ‘internal’ sanctions, which does not exclude measures available from outside the framework of the Convention in case the State Party concerned fails to redress the situation in time. Paragraph 4 indicates that, in cases of particular gravity, a solution must be sought outside the mechanisms of the Convention, but it does not entail more than an obligation to bring the issue ‘to the attention’ of the appropriate UN organs.
Within the framework of the Convention, the Conference and the Council bear the responsibility for looking after compliance and taking measures to redress compliance concerns. However, given the nexus between arms control and military security, at some point the stakes may become too high to expect States Parties to continue waiting for action to be taken by the Organisation. States Parties can in any event be assumed to be at liberty to define their legal position vis-à-vis the non-compliant State independent of the Organisation if and when the Convention mechanisms prove to be ineffective, in the sense that the need to take measures is recognized by the Conference and Council, but measures have no effect, or a decision cannot be reached by the organs of the Organisation. In sum, the right of States Parties to resort to individual or collective (counter) measures outside the framework of Article XII is limited to the extent that they must first exhaust the remedies available under that framework, or establish its ineffectiveness.
Efforts by one or more States Parties taking the lead to solve a situation with the (implied) consent of the supervising organization would not be incompatible with the priority of the treaty-based mechanism. Compare, e.g., the efforts by the US to keep the Democratic People’s Republic of Korea in the NPT and the IAEA Safeguards regime after suspicions of serious non-compliance in 1993 to 1994.46
The functioning of international supervisory organizations such as the OPCW in matters of compliance-control can be qualified as ‘managerial’ rather than adversarial. It institutionalizes an approach whereby the Organisation uses regular meetings of organs, informal consultations, confidence-building measures, exchange of information, and discussions among and between the States Parties as compliance tools, rather than seeking direct confrontations, e.g., by openly and officially establishing cases of non-compliance or trying to enforce compliance through sanctions.47 The way in which the concerns about the initial declarations and the rate of destruction of chemical weapons have been handled by the Organisation offer clear examples of this approach. In that respect, it is important to evaluate whether instances of non-compliance constitute (militarily) significant breaches of the Convention or only minor infringements, and whether there is a single violation, or ongoing or repetitive violations. The nature of the provision that (allegedly) was violated is also a significant factor to be taken into account, References(p. 380) in particular, if it concerned a ‘technical’ and/or institutional provision or a substantive obligation. But even more importantly, non-compliance may be the result of causes that are beyond the control of (the government of) the State Party concerned, instead of being a wilful act of obstruction. The reaction, in the event of a situation that can be traced back to a lack of goodwill, will be different from responses to situations that are caused by lack of capacity. In general, a violation will be more or less significant depending on the intent of the violating State and the amount of damage that has been, or will be, done to (the object and purpose of) the Convention or to the States Parties. The types of measures taken to redress a situation and to enforce compliance will thus differ along with the nature and significance of the violations concerned.
In the field of military security, where the legal maxim par in parem not habet imperium directly contrasts with the unequal division of power among States, the ‘managerial’ approach revolves around respect for State sovereignty and good faith, albeit under the principle ‘trust but verify’. This is a valid—and probably the most effective—approach, but caution should be taken to ensure that it does not result in a complete lack of use of instruments for the detection of non-compliance and for responding to alarming situations.48 It should be noted that the key to compliance may be in the threat of detecting non-compliance, but the mechanisms offered by Article XII may not be sufficiently robust to deter a State Party from violating the Convention if that State is determined to cheat under the terms of the treaty. That, however, is not so much a shortcoming of the Convention, but rather a potential weakness inherent in the system of international law enforcement.
Still, if there are clear indications of a serious (threat of a) breach of fundamental obligations under the Convention, in particular Article I, the Organisation should not hesitate to use the strongest possible actions under Article XII to the extent necessary. This is not only the proper way to protect the object and purpose of the Convention, but it is also of utmost importance to avoid the risk that States Parties seek unilateral ‘solutions’ to situations to the detriment of the Convention, or even feel compelled to invoke the special withdrawal clause of Article XVI, paragraph 2.
There is no legal basis in the Convention, or in international law generally, for sanctions against States not Party as long as the basic obligations, including the prohibitions in Article I of the Convention, are not considered to reflect rules of customary international law.49 Concerns were expressed during the negotiations that, pending universal adherence to the Convention, States Parties’ security interests might suffer by activities prohibited under this Convention, undertaken by States not Party to the Convention.
As noted earlier, even if a State Party still possesses chemical weapons, it is prohibited from using them in self-defence or retaliation. Article X, on assistance and protection against chemical weapons, deals with the same subject from another perspective.50 References(p. 381) Therefore, an interpretation might be possible and required which regards paragraphs 1, 3, and 4 of Article XII as being applicable, mutatis mutandis, for considerations, actions, or recommendations vis-à-vis States not Parties to the Convention. This would be of special importance in case States Parties make use of their right, pursuant to Article X, to request assistance from the Organisation. It has to be added that the situation would not be different, in principle, if the State engaging in prohibited activities is not a Party to the Convention, with regard to the risks posed to the Convention and the security interests of the States Parties. The interruption of cooperation in the chemical field by all States Parties to the Convention will be an effective reaction to the threat and, what is more, be required for States Parties in order to comply with the undertaking in Article I, namely: not to assist anyone to engage in any activity prohibited for States Parties under this Convention.
The provisions in the Convention on compliance-control and enforcement do not per se exclude the right of States Parties to employ ‘sanctions’ in the form of countermeasures within the limits of general international law against States not Party to the Convention (unless, perhaps, the issue at hand would be pending for an international dispute-settlement body). Also, the UN Security Council can become involved on its own account in matters involving the production, threat, or use of chemical weapons.
Moreover, if the State concerned is not Party to the Convention, the trigger for UN Security Council involvement is not in non-compliance with the Convention, but in the determination of the situation according to Article 39 of the UN Charter. Thus, in Resolution 2118 (2013) regarding the situation in Syria, the Security Council decided (at paragraph 21) to impose measures under Chapter VII of the UN Charter in the event of non-compliance with the Resolution, thereby sanctioning prospective non-compliance with chemical disarmament in Syria at a time the Convention had not yet entered into force for it.51
1 E.g., the International Atomic Energy Agency (IAEA) and the (future) Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) can make use of national reports, consultation and clarification, and similar methods for monitoring and verifying compliance, including with a view to correcting non-compliance.
2 The method, first to seek a solution by contacting and consulting the State Party concerned before informing the Executive Council, is the rule for the Technical Secretariat. This will have to be applied, even if not specifically provided for, in all comparable situations, e.g., VA-Pt II, para. 7 (non-acceptance of proposed inspectors, etc. impedes, in the opinion of the Director-General, the fulfilment of the tasks of the Technical Secretariat). Another situation exists when immediate action of the Director-General is required, as in VA-Pt V, para. 74. Then, the rule first to seek a settlement by consultation will not be applicable.
3 Nowadays, the first use of chemical weapons would seem to constitute a breach of customary international law, binding States Parties and States not Parties alike. Likewise, it has been put forward that there is a customary law origin for the designation as a war crime of the use of chemical weapons as a method of warfare, both in international and non-international armed conflict, which has been codified in the Rome Statute of the International Criminal Court (Rome, 17 July 1998, 2187 UNTS 90) (Art. 8.2.b (xvii–xviii); Art. 8.2.e (xiii, xiv)).
4 Similar discussion had already arisen on other occasions, e.g., regarding possible sanctions in the framework of the International Civil Aviation Organization (ICAO). However, in a statement of 1979, a UN observer negated that the provisions of Arts 39 and 41 on sanctions preclude all other collective measures. See F. E. Kirgis, International Organizations in their Legal Setting: Documents, Comments, and Questions (St Paul: West, 1977), pp. 483–4.
5 The word ‘sanctions’ was first added to the heading of these provisions when they had been included in App. I of the ‘Rolling Text’ in January 1991 (Conference on Disarmament, Report of the Ad Hoc Committee on Chemical Weapons to the Conference on Disarmament on Its Work during the Period 8–18 January 1991, CD/1046 (18 January 1991), p. 50).
6 See ‘Agreement concerning the Relationship between the UN and the OPCW’ (Annex to OPCW Executive Council, Draft Relationship Agreement between the United Nations and the OPCW, EC-MXI/DEC.1 (1 September 2000)), as approved by the OPCW Conference of States Parties (CSP), Decision: Relationship Agreement between the United Nations and the OPCW, C-VI/DEC.5 (17 May 2001) and by the UNGA Resolution A/RES/55/283 (7 September 2001), Arts II, IV.3, VI, and VIII.
7 See Art. VIII, powers and functions of the Conference.
8 See Art. VIII B, paras 11 and 12.
10 The action would aim at ‘ensuring implementation’ when a State Party would not become active after the entry-into-force of the Convention as regards its obligations; it would aim at ‘restoring compliance’ in cases of activities prohibited by the Convention.
11 Art. VIII, para. 36. This does not necessarily exclude exceptions in cases of blatant violations and obvious disregard of attempts for a consulted settlement by the malefactor, as that would involve abuse of law or acting in bad faith—and as a matter of principle, no State is allowed to benefit from its own wrongdoing (cf. ex iniuria ius non oritur).
12 For a clear example, see OPCW Conference of the States Parties, Report of the Sixteenth Session of the Conference of the States Parties 28 November–2 December 2011, C-16/5 (2 December 2011), paras 9.4 and 9.5.
13 Note that in the Comprehensive Nuclear-Test-Ban Treaty (CTBT) (New York, 10 September 1996, 35 ILM 1439), which otherwise uses the same language as the Convention in Art. XII, para. 2, it is stipulated that the sanctions remain in force until the Conference of the CTBTO decides otherwise: see CTBT, Art. V, para. 2.
14 Suspension of membership, like expulsion of a member, would be counter-productive to reaching universality of membership and would give the wrong signal that ongoing non-compliance would, practically speaking, release the State of its membership obligations as well. Under the IAEA Statute (New York, 26 October 1956, 276 UNTS 3), deprivation or suspension of membership has been excluded as a sanction only implicitly: Art. V(E), para. 3 in connection with IAEA Statute, Art. XIX(B) refer to suspension of the exercise of rights and privileges as a sanction.
15 Proportionality is broadly emerging as a general limitation on coercion and other reactions in the event of a breach in international law. See, e.g., M.-E. O’Connell, ‘Debating the Law of Sanctions’ (2002) 13(1) European Journal of International Law 63–79; and T. M. Franck, ‘Proportionality in International Law’ (2010) 4(2) Law and Ethics of Human Rights 231–42.
17 The first part of this paragraph paraphrases what the Vienna Convention on the Law of Treaties (VCLT) (Vienna, 23 May 1969, 1155 UNTS 331) defines as a material breach of a treaty for the purposes of its Art. 60, which deals with the termination or suspension of the operation of a treaty as a consequence of its breach. This definition, contained in VCLT, Art. 60, para. 3(b) reads: ‘The violation of a provision essential to the accomplishment of the object or purpose of the treaty.’
18 See entry ‘non-proliferation of chemical weapons’ on the website of the OPCW (<http://www.opcw.org/our-work/non-proliferation/>), referring to the prohibition of assistance in Art. I(d) and to Art. VI of the Convention.
19 See B. Simma (ed.), The Charter of the United Nations: A Commentary (Oxford: 2nd edn, Oxford University Press, 2002), p. 568; and M. D. Öberg, ‘The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ’ (2005) 16(5) European Journal of International Law 879–906, 880. See also M. Virally, Le Droit International en devenir: Essais écrits au fil des ans (Paris: Presses Universitaires de France, 1990), p. 193.
20 See also E. P. J. Myjer, ‘The Organization for the Prohibition of Chemical Weapons: Moving Closer towards an International Arms Control Organization? A Quantum Leap in the Institutional Law of Arms Control’ in E. P. J. Myjer (ed.), Issues of Arms Control Law and the Chemical Weapons Convention: Obligations inter se and Supervisory Mechanisms (The Hague: Martinus Nijhoff, 2001), p. 124.
21 This in itself should be considered possible, even though the OPCW is not a collective self-defence organization like NATO; cf., e.g., the Statement of the Permanent Council of the OSCE on the applicability of Art. 51 of the UN Charter after the Twin Tower attack of 11 September 2001, in OSCE Permanent Council, Statement by the Permanent Council Supporting United States-led Actions to Counter Terrorism, PC.JOUR/360/Corr.1 (Annex) (11 October 2001).
22 See also A. Rosas, ‘Reactions to Non-Compliance within the Chemical Weapons Convention’ in M. Bothe et al. (eds.), The New Chemical Weapons Convention: Implementation and Prospects (The Hague: Kluwer Law International, 1998), pp. 425, 435, and 440.
23 Art. I, para. 1 contains the undertaking ‘never under any circumstances … (d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention’. This means that delivery of chemicals as well as equipment and scientific know-how necessary for the development and production to a State that is decided to acquire chemical weapons is prohibited. VA-Pt VI contains in Section B restrictions of transfer for certain chemicals. The same applies for VA-Pt VII, Section C. Article VII, para. 2 contains the obligation to cooperate and afford legal assistance to facilitate the implementation obligation under para. 1 of the same Article. From this, it can be concluded that recommendations concerning this cooperation in order to penalize assistance of CW production under Art. XII are possible, etc.
24 Statute of the IAEA, Art. XII(C) contains a comparable measure, indicating that the Board shall report a case of non-compliance to all members and to the UN Security Council and General Assembly. An assessment of gravity of the case is not required. While reports to be submitted to the UN normally require, in accordance with Art. V(E), para. 6, the approval of the General Conference, reports pursuant to Art. XII(C) are exempt from this requirement.
25 See also: OPCW CSP, Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction in the Year 2001, C-7/3 (10 October 2002); and OPCW CSP, Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction in 2002, C-8/5 (22 October 2003), n. 4.
27 See C-I/DEC.72, Rule 12, specifying that the Council between regular sessions shall meet as often as may be required for the fulfilment of its powers and functions, and that for this purpose, each member of the Council should be prepared, at short notice, to attend meetings of the Council. In particular, the Council shall meet without delay to consider any issue or matter within its competence affecting the Convention and its implementation, including concerns regarding compliance and cases of non-compliance.
29 OPCW CSP, Report of the Second Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention (Second Review Conference) 7–18 April 2008, RC-2/4 (18 April 2008), para. 9.43.
31 OPCW CSP, Report of the Organisation on the Implementation of the Convention (1 January–31 December 1999), C-V/5 (17 May 2000), para. 5; OPCW CSP, Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction in the Year 2000, C-VI/5 (17 May 2001), para. 1.8; OPCW CSP, Report of the Fourth Session of the Conference of the States Parties, C-IV/6 (2 July 1999), para. 10.1; and OPCW CSP, Report of the Third Session of the Conference of the States Parties, C-III/4 (20 November 1998), para. 12.2(h).
33 See entry OPCW, ‘The OPCW and Libya’, <http://www.opcw.org/special-sections/challenge-inspection-exercise/the-opcw-and-libya/>.
34 The examples that follow in the text are taken from L. Tabassi, ‘The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention)’ in G. Ulfstein et al. (eds), Making Treaties Work: Human Rights, Environment and Arms Control (Cambridge: Cambridge University Press, 2007).
35 See the discussion of Art. II, para. 9(d).
36 See in particular the decisions on extension taken at the Eleventh Session of the CSP: OPCW CSP, Decision: Request by a State Party for an Extension of the Final Deadline for Destroying All of Its Category 1 Chemical Weapons, C-11/DEC.12 (8 December 2006); up to and including OPCW CSP, Decision: Extensions of the Intermediate Deadlines for the Destruction by Albania of its Category 1 Chemical Weapons, C-11/DEC.19 (8 December 2006). See, for another example, OPCW CSP, Decision: Extension of the Final Deadline for the Destruction by Libya of its Category 1 Chemical Weapons, C-16/DEC.3 (29 November 2011).
37 See R. Trapp, ‘The First Ten Years’ in I. R. Kenyon and D. Feakes (eds), The Creation of the Organisation for the Prohibition of Chemical Weapons: A Case Study in the Birth of an Intergovernmental Organisation (The Hague: TMC Asser Press, 2007), p. 269.
38 Diverging views about including suggestions from a status report of the Director-General on the topic of timely destruction of Category I chemical weapons (OPCW CSP, Note by the Director-General: Status Report on the Progress Made by Those States Parties That Have Been Granted Extensions of Deadlines for the Destruction of Their Category 1 Chemical Weapons, C-13/DG.7/Rev.1 (28 November 2008)) resulted in a lack of consensus at the Thirteenth Conference: see the Chairpersons’ Report of the Thirteenth Session of the Conference, OPCW CSP, Chairperson’s Report on the Proceedings of the Conference of the States Parties at its Thirteenth Session 2–5 December 2008, C-13/5 (5 December 2008), para. 9.7.
39 See also OPCW CSP, Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction in 2009, C-15/4 (30 November 2010), paras 3.3 and 9.6.
40 OPCW CSP, Report of the Fourteenth Session of the Conference of the States Parties 30 November–4 December 2009, C-14/5 (4 December 2009), para. 9.7; and OPCW CSP, Report of the Fifteenth Session of the Conference of the States Parties 29 November–3 December 2010, C-15/5 (3 December 2010), para. 9.10.
42 See OPCW CSP, Report of the Third Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons Convention, RC-3/3* (19 April 2013), para. 9.52; see also para. 9.8 of the Political Declaration in the same Report.
44 See B. Simma and D. Pulkowski, ‘Of Planets and the Universe: Self-Contained Regimes in International Law’ (2006) 17(3) European Journal of International Law 490 ff. See also B. Simma, ‘Self-contained Regimes’ (1985) 16 Netherlands Yearbook of International Law 111; E. Zoller, Peacetime Unilateral Remedies: An Analysis of Countermeasures (Dobbs Ferry, NY: Transnational Publishers, 1984), pp. 90–3 and 113–15; and A. Marschik, ‘Too Much Order? The Impact of Special Secondary Norms on the Unity and Efficacy of the International Legal System’ (1998) 9 European Journal of International Law 212, 222–34.
48 E.g., requests for clarification or, in special cases, a request for a challenge inspection, and of course the measures under Art. XII.
50 Art. X under its para. 8(c) recognizes the case when the threat originates from a State not Party: ‘(c) It is threatened by actions or activities of any State that are prohibited for States Parties by Art. I.’