On the Transfer of Syria's Chemical Weapons

In an excellent Lawfare post last month, Does the U.N.’s Syria Resolution Violate the Chemical Weapons Convention?  Faiza Patel asserts that if Syria sent chemical weapons to another country, Syria would violate the Chemical Weapons Convention (CWC).  The conclusion stems from her reasonable, though (to my eye) exceedingly literal reading of the CWC—which bans the “transfer” of chemical weapons to “anyone.” The UN Security Council (UNSC) believes removing chemical weapons from Syria may be the soonest and safest method of eliminating them. This is why UNSC Res. 2118 authorizes “Member States to acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW, consistent with the objective of the Chemical Weapons Convention, to ensure the elimination of the Syrian Arab Republic’s chemical weapons program in the soonest and safest manner.” The interplay of treaty and resolution might pose a problem, which Patel notes: if removal of chemical weapons from Syria is indeed the soonest and safest method to eliminate Syria’s chemical weapons, would that removal nonetheless violate the CWC’s ban on transfer?  Further, assuming the recipient state is a CWC State Party, would the receipt also trigger another CWC prohibition, on the acquisition of chemical weapons?  To resolve the dilemma, Patel suggests that the movement of chemical weapons, for purposes of destruction, might be treated as something other than a “transfer” prohibited by the treaty. I perceive less of a dilemma than Patel does.  As I explain below, the historical context, treaty text, and the unique circumstances of the Syrian disarmament together strongly suggest an interpretation of the CWC’s “transfer” language that does not forbid activities undertaken to give effect to UNSC Res. 2118.  Indeed, a contrary reading might well delay or derail chemical weapons disarmament—and thwart both the treaty and the Security Council.  There is, in other words, less legal tension surrounding Syria’s disarmament than Patel perceives.  In the end, Syria is obliged to comply with UNSC Res. 2118. Historical Context  Consider the CWC’s historical backdrop.  According to the Commentary on the Chemical Weapons Convention, the Biological Weapons Convention (BWC) preceded the CWC and in many senses served as a template for CWC, especially with regard to CWC Art. 1—which sets forth the “transfer” ban. Compare this to a similar prohibition, in the BWC, on the “retention” of covered weapons. The BWC is a relatively short, simple treaty, demanding that states parties destroy or divert to peaceful purposes all such weapons within nine months of entry into force.  Of course, States Parties could “retain” biological weapons during those nine months for the limited purpose of destroying them as soon as possible—but nobody thought this move to be incompatible with the BWC. The broad language in the BWC and the CWC is explainable based on general fears of States Parties trying to avoid disarmament and non-proliferation obligations.  The CWC text is largely a repetition of previous treaty text from the BWC.  The history behind the treaty does not force a literal but nonsensical interpretation (States Parties can retain for nine months but cannot retain at all!), or an interpretation that would work against the disarmament goal of the treaty. The Text of the Treaty The language immediately surrounding “transfer” in the CWC helps explain the word’s intended scope. CWC Art. 1.1(a) says it is forbidden: “(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone[.]”  (Emphasis added.)  Interpreted literally, this would mean that no States Parties could retain any chemical weapons from the moment the CWC entered into force.  But we know that literal interpretation to be mistaken, for under the treaty, States Parties must destroy their chemical weapons within ten years of entry into force (CWC Art. 4.6), not instantly. Having this in mind, it seems more plausible to conclude that retention of covered weapons is nonetheless allowed for the express purpose of destroying them.  With the BWC’s nine-month timeframe, such “retention” is easily glossed over.  With the CWC’s ten-year timeframe, the ban on any retention would be a bit more surprising to a literalist, but it is easily read in the same spirit as the BWC ought to be read—with an eye towards defining the terms in a manner that facilitates the goals of the treaty. The CWC Preamble explains why retention and transfer are prohibited:

Convinced that the complete and effective prohibition of the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons, and their destruction, represent a necessary step towards the achievement of these common objectives[.]

Those objectives include:

achieving effective progress towards general and complete disarmament under strict and effective international control, including the prohibition and elimination of all types of weapons of mass destruction, […] to exclude completely the possibility of the use of chemical weapons

It is true that references to the object and purpose of the treaty can be used in a sloppy and inappropriate manner to defeat a plain reading of the text, but in this case it would be foolish not to pay attention to the goals of the treaty—all the more so when a literal interpretation would run directly counter to those goals. Which is the preferable reading of the CWC: a one banning anything that could be characterized as transfer but that might also lead to chemical weapons proliferation and use; or one aiming at disarmament under strict and effective international control? Syrian Context The circumstances surrounding Syria’s disarmament are unique and urgent.  Not only has the Security Council, in an unprecedented move, authorized Member States to “acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the OPCW, consistent with the objective of the Chemical Weapons Convention;” in addition, the OPCW Executive Council itself in its 27 September 2013 Decision recognized that “this decision is made due to the extraordinary character of the situation posed by Syrian chemical weapons and does not create any precedent for the future.”  In the past, there was generally little need to move chemical weapons out of the country they were in.  But now there is a pressing need.

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It is thus reasonable to suggest that if Syria “permitted the removal of” or “relinquished” chemical weapons, that should not be considered “transfer” if such removal is done for the express purpose of destroying those weapons as soon as possible (when failure to relinquish them poses a terrible proliferation risk) just as one might say to keep weapons to destroy them within the mandated timeframe is not to “retain” those weapons within the meaning of the treaty.  By the same token, should Russia (for example) temporarily “permit Syrian chemical weapons onto its territory,” for the sole and express purpose of destroying those weapons as soon as possible, I think it would be a reasonable to say that Russia was not violating its CWC Art. 1 obligations not to “acquire” chemical weapons.  (Perhaps they could be destroyed at Gorny or Kambarka, where the chemical weapons destruction facilities have completed their work.)  It is not as though Russia is chemical weapons-free at the moment, or unfamiliar with Syria’s stockpile. The forgoing interpretation could certainly be limited to the present situation, without, as the OPCW Executive Council notes, creating “any precedent for the future.”  There is always a risk that one flexible interpretation could lead to another, but I think the risk is worth it in this case.  Syria has one of the world’s last great caches of chemical weapons.  The chance to destroy it must not be missed. In the end, Syria is obliged to comply with UNSC Res. 2118, which is backed by the full authority of a determination of a threat to international peace and security (see Ch. 7, Art. 39 of the UN Charter), regardless of Syria’s interpretation of the CWC.  I do not think it is necessary to discuss whether Art. 103 of the UN Charter enters into play here (as a judge avoids unnecessary constitutional issues, so should this issue be avoided unless necessary).   But if that provision were implicated, the result would be clear: obligations under the UN Charter would trump those under the CWC.  Syria must “complete the elimination of all chemical weapons material and equipment in the first half of 2014.”  If the only way it can do it is to relinquish its chemical weapons, it must do so.  If instructed to do so by the OPCW pursuant to UNSC Res. 2118 or by the UNSC directly, it must do so.  Receiving states are clearly legally authorized under UNSC Res. 2118 to assist. This is an unprecedented issue, about which reasonable people may disagree.  But there should be general agreement that disarmament law should not be cynically used by the Syrian government to avoid disarmament obligations.  The OPCW should have no fear in using its best technical judgment; including facilitating the removal of chemical weapons out of the country if that is the most prudent course.  Enforcing the disarmament law is vitally important to the transition from armed conflict to peace (i.e., jus post bellum).  Continued use of such weapons or their proliferation will make peace that much harder to achieve, and the resulting peace less likely to be just and sustainable.