Modernizing the Chemical Weapons Convention – Pt. I – Georgetown International Environmental Law Review

Shana Mirhosseini Pt1

Modernizing the Chemical Weapons Convention – Pt. I

by Shana Mirhosseini, Staff Contributor

Throughout the history of human warfare, poison has garnered an especially detestable place as a weapon. The Chemical Weapons Convention, while an important development in preventing the use of chemical weapons against humans, may not be enough.

In this two-part series, GIELR Online explores these shortcomings and proposes changes to the CWC. Part I introduces the CWC and evaluates its shortcomings. Part II considers potential changes to the CWC, necessary for the treaty to make a positive environmental impact.

Introduction

After widespread use of nerve and blister agents in the First World War, which resulted in 100,000 fatalities and one million casualties, the international community resolved to take more serious action to ban chemical warfare.[1] The result of their efforts was the 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and Bacteriological Methods of Warfare.[2] While this protocol was a decent attempt, it did not ban the development, production, or possession of chemical weapons (CW).[3] Meanwhile, a number of State Parties to the convention continued to develop newer, more potent agents, e.g. VX.[4] As more states realized the dangers of holding large stockpiles of chemicals versus their limited and outdated utility in battle, the need for a comprehensive ban on deadly chemicals became apparent.[5]

Throughout the 1970s and 80s, states at the Geneva Conference worked on drafts of what was to become the current version of the Chemical Weapons Convention: The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (CWC).[6] In 1986 chemical industries also became active in the dialogue, as the inspection regime chosen by the drafters called for inspections of both private and military facilities capable of producing chemical weapons.[7] In 1993 the treaty was opened for signatures, and subsequently entered into force in 1997. To date, it has 190 parties. Two more states (Israel and Myanmar) have signed but not ratified it; only four countries (Angola, Egypt, North Korea, and South Sudan) have avoided the treaty.[8] Among the most notable aspects of the CWC are its absolute ban on development, production, or possession of chemical weapons, its verification system, and its ability to quickly adapt to weapons and technology through its change procedure.[9] Although the CWC addresses some environmental concerns for the destruction process, it is, nevertheless, a treaty written primarily to address the use of chemical weapons against humans (and, for testing purposes, animals). It was never intended, per se, to protect the environment from chemicals–whether weaponized or not.

As innovations in technology, chemistry, and warfare arise, the human race continues to push the boundaries of human and environmental safety in the name of progress and profit. Genuine international efforts to address chemical safety began with the Stockholm Conference in 1972, and have evolved in the form of treaties, organizations, and conferences over the years.[10] Similarly, over the past four to five decades, increased environmental awareness has led to the establishment of national environmental agencies and regulations worldwide.[11] However, a better international solution is necessary since environmental harms result in global repercussions.

“Although the CWC addresses some environmental concerns for the destruction process, it is, nevertheless, a treaty written primarily to address the use of chemical weapons against humans […] it was never intended to protect the environment from chemicals – whether weaponized or not.”

This piece argues that the CWC should (1) be amended to ban damages to the environment caused by CWs and other hazardous chemicals released into the environment as a result of military practices; and (2) change its annex of the schedules of CWs to include more modern chemicals. This note further argues that as the destruction process for existing CWs ends and the work of the Organization for the Prohibition of Chemical Weapons (OPCW)[12] lightens over the years, incremental amendments should be made to fully integrate the treaty from its current military focus to an environmental protection treaty. Moreover, as the CWC targets the environment, the OPCW should work more closely with the Chemicals Branch of the United Nations Environment Programme (UNEP) to implement their plans. The CWC is the best, albeit unlikely, vehicle to achieve the environmental effects of near universal regulations on certain dangerous chemicals due to the lack of cohesion in the international community regarding environmental health and protection measures. Unlike the other environmental chemical treaties, as an almost universal treaty,[13] and with the unique built-in change (as opposed to amend) procedure,[14] the CWC is the best legal instrument for fundamental environmental and health protection against harmful chemicals.

Shortcomings of the CWC

Though the CWC is one of the best, and most comprehensive treaties to exist, it is not without its problems. One such problem is the lack of protective measures for the environment from CWs during a conflict; chemicals are only considered “weapons” if they are used to hurt living beings limited to humans or animals. Furthermore, though the treaty allows for more chemicals to be added to the Annexes as science progresses, there have been no new additions to the schedules of chemicals and precursors, though science has certainly advanced enough to have created toxic and hazardous chemicals worthy of the list. Accordingly, states may use chemicals not on the list to destroy their enemy’s environment under the guise of military strategy.

“One such problem is the lack of protective measures for the environment from chemical weapons during a conflict…”

Although there are military treaties designed to protect the environment,[15] none is as effective against the environmentally unsound use of chemicals than the CWC could be. Though it can be easy to forget, our environment plays a crucial role in our health and wellbeing, and therefore, it is worth protecting. Because the environment is directly related to human health, the use of hazardous chemicals during a conflict should be just as unthinkable as using those chemicals on people. Though it may not appear as suddenly or as dramatically as the effects of CWs appear on humans, the harmful effects of a chemically contaminated environment are just as horrific.[16]

“The OPCW has not updated the CWC’s schedules of chemicals even as science has progressed […] there cannot be proper regulation and inspection of chemical facilities without an updated list of chemicals.

Moreover, the OPCW has not updated the CWC’s schedules of chemicals even as science has progressed.[17] Although the treaty’s definition of a CW would cover chemicals used as weapons even if they are not specifically mentioned in the Annex, there cannot be proper regulation and inspection of chemical facilities without an updated list of chemicals. These inspections are one of the most important features of the CWC and allow the Member States to feel more secure. Additionally, they can provide information about the industries that environmental treaties simply cannot. Because the global impact of hazardous chemicals on the environment culminates from small instances around the world, it is pertinent to have the right data from private industries. However, because the industries are not required to disclose all or parts of their data to environmental agencies, they are unable to prevent, recognize, or solve environmental catastrophes. Furthermore, even if the industries were to disclose their data to their state’s environmental agency, without open communication or a central governing body to use and analyze the information, such data would be of limited use. Therefore, it is imperative that the CWC’s Annex of Chemicals be inspected, updated as soon as possible, and regularly thereafter.

More Treaties, More Problems

Although the Conventions and organizations mentioned earlier under Environmental Chemical Treaties are all loosely linked through the UNEP, there is no central governing body, e.g. OPCW, to oversee all regulation of hazardous chemicals. Moreover, none of the Conventions or conferences above have as many signatories or participants as the CWC, making a true global effort difficult. Furthermore, many of the provisions of the Conventions are optional, or are meant to merely to increase public awareness.

Though each Convention has its own Conference of the Parties to oversee the implementation of the Conventions in conjunction with the Executive Secretary of the Synergies Process, there is no central body with absolute authority. Though the Synergies Process was developed to streamline the process of regulating hazardous chemicals, it is, at best, a voluntary measure that creates the illusion of harmonization. When creating this process, the Conference of Parties made clear that it would not impose on the legal integrity of each individual Convention. While it is true that open communication between the implementing bodies of the Conventions is a step in the right direction, it is no longer enough. Due to the tremendous increase in the amount of chemical production and questionable disposal methods, these chemicals pose a significant threat to the human health and environment.[18] Though individually these instances of chemical production may not have a great effect in any given region, collectively they give “rise to a complex mixture of chemicals the impact of which on the planet and population is difficult to predict.”[19] Therefore, a strong, unified governing body with legal authority is required to implement proper regulations in all aspects of chemical development.

“A strong, unified governing body with legal authority is required to implement proper regulations in all aspects of chemical development.

Moreover, each Convention has different parties, making true harmonization of regulations nearly impossible.[20] Therefore, even if the Synergies Process had legal legitimacy, the scope of its achievements would be limited to those states’ party to the three Conventions. Furthermore, many states have reserved privileges that hamper further development. For example, China, one of the world’s largest manufacturing countries, has reserved the right to approve any additional chemicals being added to the Annexes of the Stockholm Convention. Therefore, it would be perfectly legal for China to choose not to eliminate the production of a toxic chemical added to Annex A of the Convention. Additionally, the states that are not part of the Conventions pose the largest threat to the environment, vis-a-vis chemicals. The United States, one of the world’s top hazardous waste generators, is the only developed western state who is not a party to either the Basel or Stockholm Conventions.[21] Without its cooperation, the Conventions will have minimal success.

Of the three, the only Convention the US is a party to is the Rotterdam Convention. Though the intentions behind this Convention were good, it does little, if anything to help the environment. Although it does allow the less informed states to know the chemical hazards and secrets of their purchase through PICs, it is ultimately up to the purchasing state to go forward with the transaction or not. Because the states buying these hazardous chemicals do not have the monetary means to purchase safer alternatives, informing them of the dangers involved does little to stop them. Even after the harmful effects of DDT were known and it was banned in the US, manufacturers continued to sell it to developing countries who could not afford the alternatives. A better example of this Convention’s ineffectiveness is South and Latin American states’ requests to buy the US military’s leftover Agent Orange in the mid 1970s.[22] While the US military was in search of responsible methods to destroy the hazardous herbicide, it was approached many times by industries and governments of states, including Brazil, to allow its use in updating cattle grazing land in order to increase milk and dairy output.[23] Had the US government agreed, the amazon rainforest might have had more problems today.

“Though the intentions behind the Rotterdam Convention were good, it does little, if anything, to help the environment.

The above problems are discussed only within the framework of the hand full of treaties and organizations discussed here. However, the large and ever-growing number of treaties, inter-governmental organizations, NGOs, and other such groups combine to amplify the problems. One reason for the CWCs success is comprehensiveness in its subject. Therefore, if anything productive is to be done about the impact of hazardous and toxic chemicals, a comprehensive and singular treaty, with a strong governing body is necessary.

GIELR LOGO SMALL

Part II of this will consider potential changes to the CWC, necessary for the treaty to make a positive environmental impact.


 

[1] Genesis and Historical Development, supra note 1. (though several treaties limiting the use of chemical weapons already existed at this time, the horrors of WWI inspired a new resolve to take a harder stance against these weapons).
[2] Id.
[3] Id.
[4] VX is a nerve agent, akin to Sarin; however, unlike Sarin, VX is far less volatile and is far more persistent in the environment, making it safer for storage but more dangerous once deployed.
[5] Genesis and Historical Development, supra note 1.
[6] Id.
[7] Id.
[8] OPCW Member States, Organization for the Prohibition of Chemical Weapons, (May 4, 2014), http://www.opcw.org/about-opcw/member-states (as of May 4, 2014); OPCW Non-Member States, Organization for the Prohibition of Chemical Weapons, available at http://www.opcw.org/about- opcw/ (as of May 4, 2014).
[9] See generally, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature Jan. 13, 1993, 1974 U.N.T.S. 45, 32 I.L.M. 800, (entered into force Apr. 13, 1997) [hereinafter CWC].
[10] Philip Wexler, Jan van der Kolk, Asish Mohapatra, Ravi Agarwal, Chemicals, Environment, Health: A Global Management Perspective xviii (Wexler et al. eds., 2012).
[11] See generally, e.g., Rachel Carson, Silent Spring (1962).
[12] See CWC, supra note 10, art. VIII.
[13] OPCW Non-Member States, supra note 8.
[14] See CWC, supra note 10, art. XV paras. 4-5.
[15] See, e.g., ENMOD, supra note 44.
[16] See, e.g., Edwin Martini, Incinerating Agent Orange: Operations Pacer HO, Pacer IVY, and the Rise of Environmentalist Thinking, 76 The Journal of Military History 810-812 (July 2012).
[17] Katie Smallwood, Ralf Trapp, Robert Mathews, Beat Schmidt, and Leiv K. Sydnes. Impact of scientific developments on the Chemical Weapons Convention (IUPAC Technical Report), 85 Pure Appl. Chem. 857 (2013).
[18] N.P. Tarasova & A.S. Makarova, Comparative analysis of chemicals management systems, 62 Russian Chemical Bulletin, International Edition 1682 (July 2013).
[19] Id.
[20] The Stockholm Convention has 179 parties, Rotterdam 154, and Basel 181. Stockholm Convention, PICC, Basel Convention, supra note 48.
[21] Hazardous Waste Generation, United Nations Statistics Division, http://unstats.un.org/unsd/environment/hazardous.htm (last visited May 4, 2014).
[22] Martini, Supra note 75, at 819-821.
[23] Id.

One response to “Modernizing the Chemical Weapons Convention – Pt. I – Georgetown International Environmental Law Review

  1. Pingback: Modernizing the Chemical Weapons Convention – Pt. II – Georgetown International Environmental Law Review | GIELR Online·

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