Sustainable Development Law & Policy
Volume 6
Issue 3 Spring 2006: Sound Chemicals Management
Article 20
Enforcing the Ban on Chemical Weapons
Mea Sucato
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Recommended Citation
Sucato, Mea. "Enforcing the Ban on Chemical Weapons." Sustainable Development Law & Policy, Spring 2006, 57-72.
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ENFORCING THE BAN ON CHEMICAL WEAPONS
C
by Mea Sucato*
hemical weapons present a great risk to international
security as a result of the low costs and ease with
which they can be purchased, used, manufactured, and
stored.1 One of the most notorious examples of chemical
weapons use occurred on March 16, 1988, when Saddam
Hussein unleashed a mixture of mustard gas and nerve agents
on Kurdish civilians in Halabja, Iraq.2 At least 5,000 civilians,
including women, children, and the elderly, died immediately
as a result of the attack and 10,000 more were blinded,
maimed, or disfigured.3 In subsequent years, thousands more
died from debilitating diseases and birth defects associated
with the after-effects of chemical weapons.4
A study conducted in Halabja of the long-term effects of
chemical weapons exposure showed that “[t]hese chemicals
seriously affected people’s eyes, and respitory and neurological systems. Children are dying … of leukemia and lymphomas … [there is a] large proportion of pregnancies [with]
major malformations … [which] suggest[s] that the effects
from these chemical warfare agents are transmitted to succeeding generations.”5 This indicates that chemical weapons
exposure causes “long-term damage to the DNA”6 and can
affect the ability of an ethnic group to produce healthy offspring. By affecting the reproductive health of an ethnic group,
countries that use chemical weapons, particularly against civilian populations, arguably commit crimes against humanity that
rise to the level of genocide.7
The Chemical Weapons Convention (“CWC”) prohibits
the use of chemical weapons and further mandates that State
Parties shall not “develop, produce, otherwise acquire, stockpile or retain chemical weapons.”8 Each State Party must
undertake to destroy all chemical weapons and production
facilities.9 The Organization for the Prohibition of Chemical
Weapons (“OPCW”) is the enforcement body of the
Convention,10 and State Parties must grant the OPCW access
to conduct inspections inside their territory.11 A State Party
may also call upon the OCPW to inspect the territory of another State Party to investigate allegations of non-compliance.12
The CWC is widely criticized for its failure to ensure adequate compliance; the primary complaints are: (1) its inability
to enforce its provisions over countries that have not yet ratified
the treaty; (2) its failure to impose its provisions with respect to
terrorist groups; and (3) that the OPCW only has power to issue
sanctions after a violation is found, but cannot authorize military force.13 These criticisms are not particular to the CWC, but
to all international treaties, and describes the problems of an
international system that is largely based on comity.
While far from perfect, the CWC is an effective step
towards the ban of chemical weapons. First, while the OPCW
is not authorized to use force, it can consult with the UN
Security Council to request military action if needed.14
57
Second, the CWC makes it difficult for non-Party States and
terrorist groups to acquire both the chemicals and the equipment needed for their manufacture.15 The CWC induces its ratification by limiting the transfer of controlled-chemicals,
which a non-State Party may need for industrial purposes.16
Third, the CWC slows chemical weapon proliferation by isolating a small number of “rogue states,” such as Iraq, Libya,
and North Korea, which brings shame onto these countries,
along with political and economic pressures.17
As with all treaties, the CWC cannot ensure complete
compliance. The looming threat to international security posed
by chemical weapons warrants a complete ban on such
weaponry. Further, the incredible and unnecessary suffering
caused by chemical weapons, such as those used in Halabja, in
addition to the devastating consequences extending to subsequent generations, shows that the use, development, or transfer
of such weapons should be considered a universal crime
against humanity. The international community should consider the prohibition against chemical weapons to be a jus cogens
norm, a law that is so fundamental to international law that no
State may derogate from it.
ENDNOTES:
1 Guy B. Roberts, The Counterproliferation Self-Help Paradigm: A Legal
Regime for Enforcing the Norm Prohibiting the Proliferation of Weapons of
Mass Destruction, 27 DENV. J. INT’L L. & POL’Y 483, 492 (1999); see also
Megan Eshbaugh, The Chemical Weapons Convention: With Every Step
Forward, We Take Two Steps Back, 18 ARIZ. J. INT’L & COMP. LAW 209, 210
(2001).
2 Press Release, U.S. Dep’t. of State, Bureau of Pub. Affairs Saddam’s
Chemical Weapons Campaign: Halabja (March 14, 1988) [hereinafter
Chemicals Campaign], available at http://www.state.gov/r/pa/ei/rls/
18714.htm (last visited Mar. 8, 2006).
3 Chemicals Campaign, id.
4 Chemicals Campaign, id.
5 Christine Gosden, Why I Went, What I Saw, WASH. POST, Mar. 11, 1998, at
A19.
6 Gosden, id.
7 Cf. Margaret Sewell, Freedom from Fear: Prosecuting the Iraqi Regime for
the Use of Chemical Weapons, 16 ST. THOMAS L. REV. 365 (2004) (arguing
that Saddam Hussein’s attack on the Kurds with chemical weapons constitutes genocide and should be prosecuted as such).
8 Convention on the Prohibition, Development, Production, Stockpiling and
Use of Chemical Weapons and their Destruction, art. I, opened for signature
Jan. 13, 1993, 32 I.L.M. 800.
9 Convention on the Prohibition, id.
10 Convention on the Prohibition, id. at art 8.
11 Eshbaugh, supra note 1, at 223.
12 Eshbaugh, supra note 1, at 223.
13 See Matthew Linkie, The Defense Threat Reduction Agency: A Note on
the United States’ Approach to Threat of Chemical and Biological Warfare,
16 J. CONTEMP. HEALTH L. & POL’Y 531, 552-53 (2000); Kevin J. Fitzgerald,
ENDNOTES: Ban on Chemical Weapons Continued on page 72
* Mea Sucato is a JD Candidate, May 2007, at American University,
Washington College of Law.
SUSTAINABLE DEVELOPMENT LAW & POLICY
12 See Eric Rignot & Pannir Kanagartnam, Changes in the Velocity
Structure of the Greenland Ice Sheet, 311 SCIENCE 986 (2006); see also
Julian A. Dowdeswell, The Greenland Ice Sheet and Global Sea-Level
Rise, 311 SCIENCE 963 (2006).
13 Rignot & Kanagartnam, id. at 986.
14 Andrew C. Revkin, Glaciers Flow to Sea at a Faster Pace, Study
Says, N.Y. TIMES, Feb. 17, 2006, at A8.
15 Bryn Nelson, Glaciers Quicken Pace, NEWSDAY, Feb. 17, 2006, at
A29.
16 Rignot & Kanagartnam, supra note 12, at 990; Andrew Bridges,
Greenland Glaciers Dumping More Ice, ASSOC. PRESS, Feb. 17, 2006,
available at http://hosted.ap.org/dynamic/stories/G/GREENLAND_
GLACIERS?SITE=TXWIC&SECTION=HOME&TEMPLATE=DEFAU
LT (last visited Feb. 18, 2006).
17 Bridges, id.
18 Rignot & Kanagartnam, supra note 12.
19 Dowdeswell, supra note 12, at 964.
20 Brazil Studies Pipeline to Meet Growing Demand for Ethanol, ASSOC.
PRESS, Feb. 2, 2006.
21 Brazil Studies Pipeline, id.
22 Brazil Studies Pipeline, id.
23 Reese Ewing, World Ethanol Demand to Test Brazil Cane Industry,
REUTERS, Feb. 9, 2006, available at http://www.planetark.org/dailynewsstory.cfm/newsid/34983/story.htm (last visited Feb. 19, 2006).
24 Carmen J. Gentile, Brazil Seeks to Bolster Ethanol Sector, UNITED
PRESS INT’L, Feb. 6, 2006, available at http://www.upi.com/Energy/
view.php?StoryID=20060206-033036-3566r (last visited Feb. 19, 2006).
25 World Business Briefing Americas: Brazil: Ethanol Requires $10
Billion Investment by 2012, N.Y. TIMES, Jan. 24, 2006, at C5.
26 Ewing, supra note 23.
27 The net impact of carbon dioxide emissions from cane-based ethanol
is lower than some other current fuel sources, because as the sugar cane
grows, it acts as a carbon sink. Brazil Studies Pipeline, supra note 9.
28 Gentile, supra note 24.
29 United Nations Office for the Coordination of Humanitarian Affairs
(OCHA), Drought Emergency in Somali and Oromiya Regions, Ethiopia
(Feb. 13, 2006), available at http://www.reliefweb.int/rw/RWB.NSF/
db900SID/LSGZ-6M2LZT?OpenDocument&rc=1&emid=ACOS635NZE (last visited Feb. 15, 2006).
30 AGRIFISH Unit, IPSC, Joint Research Center-European Commission,
Monitoring agricultural vegetation in Somalia using SPOT VGT
Vegetation Index, AFRICOVER and ECMWF Global Meteorological
Modelling (Feb 13, 2006), at 1-2, available at http://www.reliefweb.int/
rw/RWB.NSF/db900SID/VBOL-6MVDKK?OpenDocument (last visited
Mar. 30, 2006).
31 Press Release, United Nations Team for Somalia, The Humanitarian
Coordinator for Somalia Calls for Better Access to Drought Affected
Populations (Feb. 14, 2006), available at http://www.reliefweb.int/rw/
RWB.NSF/db900SID/LSGZ-6M2E8E?OpenDocument (last visited Mar.
28, 2006); see also Press Release, Drought Expected to Drive Refugees,
Violence in Horn of Africa, CARE (Mar. 2, 2006) available at
http://reliefweb.int/rw/RWB.NSF/db900SID/RURI6MJQU2?OpenDocument&rc=1&cc=som (last visited Mar. 3, 2006).
32 BBC NEWS, Somali ‘food aid pirate’ seized, Feb. 14, 2006, available
ENDNOTES: BAN ON CHEMICAL WEAPONS Continued from page 57
The Chemical Weapons Convention: Inadequate Protection from
Chemical Warfare, 20 SUFFOLK TRANSNAT’L L. REV. 425, 446-47 (1997);
Sewell, supra note 7, at 379.
14 Eshbaugh, supra note 1, at 224.
15 Cecil Hunt, The Potential Contribution of the Chemical Weapon
Convention for Combating Terrorism, 20 MICH. J. INT’L L. 523, 528
(1999).
SPRING 2006
at http://news.bbc.co.uk/2/hi/africa/4712258.stm (last visited Mar. 3,
2006).
33 REUTERS, Militia roadblocks keep food from hungry in Somalia (Jan.
13, 2006), available at http://www.reliefweb.int/rw/rwb.nsf/db900SID/
ABES-6KZLVL?OpenDocument (last visited Mar. 3, 2006).
34 Militia roadblocks, id.
35 USA TODAY, WTO Rejects EU’s Ban on Genetically Modified Crops,
Feb. 7, 2006, available at http://www.usatoday.com/tech/science/genetics/2006-02-07-wto-eu-crops_x.htm (last visited Mar. 6, 2006).
36 BLOOMBERG, WTO Rules Against EU’s Biotech-Seed Rules, U.S. Says,
Feb.8, 2006, available at http://www.bloomberg.com/apps/news?pid=
10000103&sid=auax1qlUUocc&refer=us (last visited Mar. 11, 2006).
37 Scott Miller and Scott Kilman, EU Loses a Round on Biotech Crops,
WALL ST. J., Feb. 8, 2006, at A5.
38 Miller & Kilman, id.
39 WTO Appellate Body Report, European Communities-Measures
Concerning Meat and Meat Product (Hormones), (Jan. 16, 1998), (adopted Feb. 13, 1998) available at http://www.wto.org/english/tratop_e/
dispu_e/cases_e/ds26_e.htm (last visited Mar. 8, 2006).
40 Miller & Kilman, supra note 37.
41 BLOOMBERG, supra note 36.
42 GUARDIAN UNLIMITED, Sweden Plans to be World’s First Oil-free
Economy, Feb. 8, 2006, available at http://www.guardian.co.uk/climatechange/story/0,,1704955,00.html (last visited Mar. 11, 2006).
43 Sweden, id.
44 Sweden, id.
45 CHRISTIAN SCIENCE MONITOR, Britain Accelerates Toward Cleaner
Future - with Wheat (Feb.8, 2006), available at http://www.csmonitor.com/
2006/0208/p06s01-woeu.html (last visited Mar. 11, 2006).
46 Britain, id.
47 BBC News, Biofuel Raises Global Dilemmas, Jan. 17, 2006, available
http://news.bbc.co.uk/1/hi/business/4603272.stm (last visited Mar. 8,
2006).
48 Sweden, supra note 42.
49 IRINNews.Org, UN OFFICE FOR THE COORDINATION OF HUMANTARIAN
AFFAIRS, Water shortages a looming disaster, say experts (Jan. 24, 2006),
available at http://www.irinnews.org/report.asp?ReportID=51296
&SelectRegion=Middle_East&SelectCountry=YEMEN (last visited Mar.
28, 2006).
50 Lester Brown, EARTH POLICY INSTITUTE, World Creating Food Bubble
Economy Based on Unsustainable Use of Water (Mar. 13, 2003), available at http://www.casavaria.com/eco/epi/030313food-bubble.htm (last
visited Mar. 28, 2006).
51 Brown, id.
52 Khalil Al-Buraih, Alternative Water Resources Needed to Save
Life,YEMEN OBSERVER, Vol. IX - Issue 04, Feb. 4, 2006, available at
http://www.yobserver.com/news_9443.php (last visited Mar. 28, 2006).
53 IRINNews.Org, supra note 49.
54 IRINNews.Org, supra note 49.
55 MILLENNIUM CHALLENGE CORPORATION, Yemen suspended from threshold program (Nov. 28, 2005), available at. http://www.mca.gov/about_us/
congressional_notifications/112805-cn_Yemen_suspended.pdf (last visited Mar. 12, 2006).
16 Hunt, id. at 533.
17 U.S. Arms Control & Disarmament Agency, Fact Sheets, The
Chemical Weapons Convention, http://dosfan.lib.uic.edu/acda/factshee/
wmd/cw/cwcfs.htm (last visited Mar. 8, 2006).
18 The Vienna Convention on the Law of Treaties, art. 53, May 23, 1960,
1155 U.N.T.S. 331.
72