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

Shana Mirhosseini Pt2

Modernizing the Chemical Weapons Convention – Pt. II

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 introduced the CWC and evaluates its shortcomings. Part II will consider potential changes to the CWC, necessary for the treaty to make a positive environmental impact.

Repurposing the CWC

This section discusses the steps that need to be taken in order to protect the environment, within the framework of the Chemical Weapons Convention (CWC). The first stage requires (1) amending the CWC to protect the environment from hazardous chemicals in the course of military operations, and (2) changing the Annex of chemicals to reflect the new additions in dangerous chemicals that science has developed since the 1990s. The second stage requires a gradual shift toward incorporating the relevant chemical environmental treaties and organizations into the CWC, in order to reduce redundancies, inefficiencies, and inconsistencies. This process will not be short or simple, however, in order to close the chasms, we must first bridge the gaps.

Bridging the gaps

There is undoubtedly an immense amount of work necessary to stop the environmentally unsound production, use, and disposal of toxic chemicals; however, the starting point is a small one. The amendments should begin by working within the treaty’s military applications. Moreover, the Annex on Chemicals should be updated in accordance with the Science and Technologies’ secretariat’s recommendations. It is also important for the Organization for the Prohibition of Chemical Weapons (OPCW) to start collaborating, if only a little, with the United Nations Environment Programme (UNEP) and its chemical branch’s science and technology departments. Then, as the OPCW’s work regarding destruction of Chemical Weapons (CWs) begins to decline, the collaboration with UNEP should increase.

“The CWC should 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.

The CWC should 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. Because many of the current human health concerns stem from a polluted environment, we should strive to protect the environment in times of peace as well as times of war. The most glaring, although somewhat outdated, example of the importance of this change is the use of Agent Orange (AO) in Vietnam in the late 1960s and early 70s. Although the military did not use AO as a weapon to hurt the enemy, but rather to clear away the dense forest for better tactical maneuvers, the long-lasting effects of AO in the Vietnamese soil continues to cause a multitude of ailments not only for the local population, but also for US soldiers who were exposed to the herbicide at the time.[1] More recently, the burn pits in Iraq and Afghanistan have been linked to an array of human diseases.[2] Though banned by Congress four years ago, their use in several military operations since 1990[3] has caused several chronic illnesses in US troops and the local population. Though in neither of the above examples the chemicals released into the environment were weaponized, and therefore did not fall under the definition of CWs, the effects were equally as atrocious as the recent Sarin attacks in Syria. The environment is inexorably linked with human health and wellbeing; therefore its protection should be synonymous with the protection of human life. It is no longer sufficient that simply because the militaries around the world do not intend for the chemicals to harm individuals they should be allowed to use them to carry out their operations. The CWC, though a great treaty, is at risk of becoming outdated by not adapting to today’s use and disposal of hazardous chemicals in the military. This treaty has the potential to be much more effective, starting with amending the treaty’s military applications the risk of overwhelming the OPCW and the S&T (Science and Technology) Secretariat will be minimized.

“The CWC, though a great treaty, is at risk of becoming outdated by not adapting to today’s use and disposal of hazardous chemicals in the military […] this treaty has the potential to be much more effective…”

In addition to the above amendments, updates to the current schedules of chemicals are necessary. Due to a general global consensus against using and developing CWs the OPCW has been lulled into a false sense of security. However, recent Syrian chemical attacks[4] have proven that no red line is bright enough to remain uncrossed. Therefore, it is important to remain vigilant in the inspection of facilities in possession of hazardous chemicals. Whereas the amendments are designed to deter the use of CWs and hold breaching parties accountable, the schedules and inspections are designed to prevent a breach of the treaty independent of the parties’ intentions. As such, they are worth a great deal of extra attention and up-keep. Although the schedules should, in any event, be updated, changing them is especially vital in lieu of the above amendments.

Furthermore, as the OPCW finishes overseeing the destruction of existing CW stockpiles, it should start committing time and resources to collaborate with the UNEP. As a result of the success of the CWC, as of December 31, 2013, 80.69% of the world’s declared stockpile of chemical agents, and 57.32% of chemical munitions and containers covered by the CWC have been verifiably destroyed.[5] As the work comes to a close, the CWC is worth preservation and expansion. Since the chemical branch of the UNEP and OPCW’s S&T Secretariats must conduct many research projects throughout the year, and need some of the same data, it would be prudent for both organizations to harmonize their research and data endeavors, in order to save time and costs that can be devoted to other projects. Moreover, the OPCW has access to information from industries that the Synergies Process’s researchers may not. Although this exchange of information must necessarily occur within the boundaries of CWC’s Confidentiality Annex, the benefits that the research with the data provide outweigh the hurdles of working within the confidentiality rules.

Closing the chasms

While time is of the essence when protecting the environment from chemicals, due to lack of consistency and commitment around the world, it is more important to take the right steps in order achieve a comprehensive and global consensus even if that means a longer process. The best way to accomplish this comprehensive global consensus is by gathering the different chemical treaties under one umbrella and streamlining the regulatory processes. The CWC is the best vehicle to provide the framework for the combination of all the treaties designed to protect the environment from chemicals. By creating a new Annex of Chemicals with different requirements, e.g. quantity limits, disposal methods, trade bans, etc., the objectives of all the current treaties can be met using one instrument. This uniform protection of the environment is especially important in light of chemical companies’ new habit of moving their operations to countries not party to the Basel, Rotterdam, or Stockholm Conventions, and lack other similar national regulations as well.[6]

“The CWC is the best vehicle to provide the framework for the combination of all the treaties designed to protect the environment from chemicals […] with different requirements, the objectives of all the current treaties can be met using one instrument.

The seminal 1972 UN Conference on the Human Environment in Stockholm that started the wave of environmental treaties and was the precursor to the UNEP[7] made a declaration containing 26 principles concerning the environment and development.[8] Among the declarations were, that science and technology must be used to improve the environment, that there must be cooperation on international issues, that rational planning should resolve conflicts between environment and development, and that weapons of mass destruction must be eliminated.[9] Even at the earliest of the environmental movement’s stages CWs were connected with protecting the environment.[10] Thus, it is only natural that the approach to chemical regulation and safety be streamlined. The current system, with a countless number of moving parts and pieces is slow, inefficient, and full of holes, which is why recently the UNEP has been attempting to streamline its processes. In explaining the necessity for streamlining, the UNEP has stated that:

[t]he traditional fragmented approach to chemicals management has lead to the proliferation of uncoordinated–and sometimes contradictory–policies that have failed to provide a coherent framework for maximizing sustainable development benefits of chemicals. The lack of awareness of the full environmental and health costs of chemicals mismanagement and the lack of capacity to develop integrated chemicals management solutions for sustainable development resulted in chemicals management being seriously underfunded.[11]

Streamlining the process of regulating, and researching the effects of chemicals under the CWC, under the regime of a renamed OPCW as one managing body is the best way to avoid further fragmentation and waste; it would also provide the best relief for the environment from hazardous chemicals.

Little by little, the objects and purposes of the environmental treaties should be integrated into the CWC to achieve full integration. Although, in reality, amending the CWC is a tough process that requires a positive vote of the majority of all State Parties present and no negative votes,[12] as time goes by more and more states will realize the necessity to take action in this field. As the objects and purposes of the treaty change, so too should the schedules of chemicals and their requirements. Each ‘type’ of chemical, e.g. POPs, Endocrine disputer chemicals (EDC), or CWs, would have different schedules, and each schedule would determine a different regulatory measure, e.g. completely banned chemicals, restrictions of quantity for any one facility, disposal instructions, or any other specifications. Because these schedules can be changed with relative ease, without every State Party’s consent, if the S&T Secretariat determines a proposed chemical belongs on any given schedule, it will be added and every State Party is bound after the proper procedures are followed. Although the Stockholm Convention has a similar function, whereby new POPs may be added to the Annexes, many states, such as China, have made reservations that new chemicals would only be recognized if passed by a national legislation, which defeats the object of a unified, global standard.

“While many states have made reservation to the Stockholm Convention and others, there are no reservations allowed in the CWC or its annexes, so it truly sets an international standard.

Moreover, the need for unified international standards in the face of the changing geography of chemical production intensifies as years go by. Because many “refining and production facilities have already begun to relocate to the global south” as the costs of operation in heavily regulated states increase, it is important to make certain these companies adhere to the same level of care regardless of physical location.[13] While many states have made reservations to the Stockholm and other Conventions, there are no reservations allowed in the CWC or its annexes,[14] so it truly sets an international standard. Attaining global standards in chemical management is especially important, because chemicals have a way of polluting the soil, air, water, and everything in between. For example, “[l]and-based human activities are the most important current driver of marine pollution and have growing negative impacts on marine, coastal and marine-dependent ecosystems.”[15] In fact, the UNEP estimates that about 80% of the pollution in the oceans originates from land-based activities.[16] When considering the amount of necessary resources that the ocean provides, it seems reckless to allow such a high rate of pollution when it is possible to begin rectifying the problem through collaboration and minimum international standards.

Conclusion

The CWC has been one of the most prolific and successful treaties of our time, and has served its purpose well; however, that purpose is now nearing its end. As the military’s use of chemicals changes, the CWC should also evolve to encompass the actual harm being done, not only to humans, but also to the environment (as the two are in reality one and the same). Although the CWC is a weapons treaty, with some minor adjustments, it can also function as one of the best-written environmental treaties. Therefore, it would be prudent to tweak the framework of the treaty, in order to repurpose it for an environmental protection treaty that applies not only in cases of armed conflict, but also in every-day life. We need to create a truly global system of chemicals management and regulation that adequately protects all people and our living environment; the CWC is the answer to this need.

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[1] See, e.g., Dr. Arnold Schecter et al., Food as a source of dioxin exposure in the residents of Bien Hoa City, Vietnam, 45 Journal of Occupational and Environmental Medicine 781-88 (2003); Fact Sheet 225: Dioxins and their effects on human health, World Health Organization, http://www.who.int/mediacentre/factsheets/fs225/en/ (last visited May 4, 2014); Susan M. Booker, Dioxin in Vietnam: Fighting a Legacy of War, 109 Environmental Health Perspectives A116 (March 2001); See Jeanne Mager Stellman, Steven D. Stellman, Richard Christian, et al. The Extent and Patterns of Usage of Agent Orange and Other Herbicides in Vietnam. 422 Nature 681–87(2003); The U.S. Veterna’s Administartion compensates Vietnam and Korean veterans for the following dioxin-related health effects: peripheral neuropathy, amyloidosis, chlorance, chronic B-cell leukemia, type 2 diabetes, Hodgkin’s disease, multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, porphyria cutanea tarda, prostate cancer, respiratory cancers, soft tissue sarcoma, and spina bifida. See Agent Orange: Diseases Related to Agent orange Exposure, U.S. Department of Veteran Affairs, http://www.publichealth.va.gov/exposures/agentorange/diseases.asp (last visited May 3, 2014).
[2] Jada F. Smith, Environmental Poisoningof Iraq Is Claimed, N.Y. Times, March 27, 2014, at A8; For more on burn pits, VA’s position on the long-term health effects, and the toxic material being burned, see Burn pits, U.S. Veterans dept., http://www.publichealth.va.gov/exposures/burnpits/index.asp (last visited May 4, 2014); though the VA does not yet admit long-term health effects on this page, based on an outdated 2011 study, these types of denials in the face of facts are nothing new, and nothing more than a legal defense tactic.
[3] These military operations include: Operation Enduring Freedom/Operation Iraqi Freedom/Operation New Dawn; Djibouti, Africa after September 11, 2001; Operations Desert Shield or Desert Storm; Southwest Asia theater of operations after August 2, 1990 – See more at: Action plans, U.S. Veterans dept., http://www.publichealth.va.gov/exposures/burnpits/action-plan.asp#sthash.DQUEoU4M.dpuf (last visited May 4, 2014).
[4] Craig Whitlock, Sarin gas used in Syria attack, Kerry says, The Wash. Post, September 1, 2013.
[5] The Chemical Weapons Ban Facts and Figures, Organization for the Prohibition of Chemical Weapons, https://www.opcw.org/news-publications/publications/facts-and-figures/ (last visited May 3, 2014).
[6] See Jody Roberts, Creating and Controlling Chemical Hazards, A Brief History, Chemicals, Environment, Health: A global Management Perspective 13 (Wexler et al. eds., 2012).
[7] See Lars-Göran Engfeld, Stockholm 1972 Conference on the Human Environment, A Brief History, Chemicals, Environment, Health: A global Management Perspective 17-20 (Wexler et al. eds., 2012).
[8] U.N. Conference on the Human Environment, June 5-16, 1972, Stockholm Declaration, U.N. Doc. A/CONF.48/14 (June 16, 1972).
[9] Id.
[10] See id.
[11] Mainstreaming, UNEP, http://www.unep.org/chemicalsandwaste/UNEPsWork/Mainstreaming/tabid/29746/Default.aspx (last visited May 4, 2014).
[12] See CWC, supra note 10, art. XV.
[13] Roberts, supra note 88.
[14] See CWC, supra note 10, art. XXII.
[15] Vladimir Golitsyn, Major Changes of Globalisation for Seas and Oceans: Legal Aspects, Law, Technology and Science for Oceans in Globalisation: IUU Fishing, Oil Pollution, Bioprospecting, Outer Continental Shelf 63 (Davor Vidas 2010).
[16] Id.

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