The OPCW can disarm Syria

No Security Council resolution is necessary

Syria is about to become the 190^th state party to the Chemical Weapons Convention (CWC) [1]. The Convention, which came into force on 29 April 1997, bans the acquisition and use of chemical weapons and requires state parties to destroy existing stocks and production facilities upon joining (Article I).

(The Appendix below summarises some other provisions of the Convention.)

The Organisation for the Prohibition of Chemical Weapons (OPCW) is the implementation body for the Convention. As its website says:

“The OPCW is given the mandate to achieve the object and purpose of the Convention, to ensure the implementation of its provisions – including those for international verification of compliance with it.” [2]

The OPCW is the appropriate international body to supervise the elimination of Syria’s chemical weapons. No Security Council resolution, Chapter VII or otherwise, is necessary.

In extremis, the OPCW can refer incidents of non-compliance to the UN – Article VIII (36) of the Convention says that the OPCW may “in cases of particular gravity and urgency” bring the issue “directly to the attention of the United Nations General Assembly and the United Nations Security Council”.

The Convention is clear: it is up to the OPCW to determine if Security Council intervention is necessary to deal with non-compliance issues during the process of eliminating Syria’s chemical weapons.

How to become a party to the Convention

For a state to become a party after 29 April 1997, when the Convention itself came into force, a state must deposit an “instrument of accession” with the UN Secretary General (Articles XX and XXIII). However, 30 days have to elapse before the process is complete and the Convention “enters into force” for that state (Article XXI(2)).

Syria deposited an “instrument of accession” with the UN Secretary General on 14 September 2013 [3] and therefore cannot become a party to the Convention until 14 October. However, Syria has asked the OPCW for “provisional application of the Convention to Syria prior to its formal entry into force” and for “technical assistance” with regard to disarmament [4].

On becoming a party to the Convention, a state also becomes a member of the OPCW (Article VIII(2)).

A state party is required to submit a declaration about its chemical weapons to the OPCW within 30 days of the Convention coming into force for that party (Article III), which means by 13 November in the case of Syria. The declaration must provide a detailed inventory of the chemical weapons the state possesses and their locations and the locations of any chemical weapons production facilities.

The “framework” document agreed by John Kerry and Sergey Lavrov in Geneva on 14 September (see below) demanded that Syria submit a declaration within 7 days, that is, more than 50 days earlier than required by the Convention. At the time of writing, Syria appears to have done just that. As of 21 September, the OPCW website [5] confirmed that it has received the Syrian declaration.

Immediately after submitting the declaration, OPCW inspectors must be granted access to the weapons and weapons production sites “for the purpose of systematic verification of the declaration through on-site inspection” (Article IV(4)).

On destroying chemical weapons

The Convention requires state parties to destroy their own weapons upon joining. Most likely given the ongoing warfare in Syria, as far as practicable, its weapons will be taken outside the country for destruction.

States that joined prior to the Convention coming into force were allowed 10 years to complete the destruction of their weapons, though a 5 year extension could be applied for (Article IV(6)). Both the US and Russia were given a 5-year extension until 29 April 2012.

However, states joining after 2007 must destroy their weapons “as soon as possible” according to procedures laid down by the OPCW Executive Council (Article IV (8)). The destruction of Syrian weapons will take place under this provision.

No Security Council resolution required

The OPCW is mandated by the Convention to oversee the elimination of Syria’s chemical weapons and has the technical capability of doing so. It will interact with the Syrian government to that end. There is no need whatsoever for a Security Council resolution, with or without sanctions under Chapter VII of the UN Charter, to get the job done. Indeed, there is no need for Security Council involvement at all, unless the OPCW decides to refer Syrian non-compliance of some description to the Security Council under Article VIII (36) of the Convention.

Non-compliance by Syria is very unlikely. It is in Russia’s interest that Syria co-operate fully, and be seen to co-operate fully, with the OPCW, so that Syria’s chemical weapons are eliminated as quickly as possible. Russia achieved a major diplomatic coup and sidelined the US (and Britain and France) by proposing that Syria get rid of its chemical weapons. It would be less than pleased if Syria obstructed the process of putting its proposal into practice and took the shine of this achievement. Syria is very unlikely to do that since it would damage its relations with Russia, its main political backer.

The Kerry/Lavrov “plan”

But didn’t the US and Russia produce a plan for ridding Syria of its chemical weapons at the meeting between John Kerry and Sergey Lavrov in Geneva from 12-14 September 2013? And isn’t the Security Council going to pass a resolution endorsing this plan and supervising its implementation, a resolution including sanctions under Chapter VII of the UN Charter to punish Syria if it fails to co-operate fully?

Well, that’s what the US (and Britain and France) want the world to think – because they want to get back in the game having been sidelined by Russia’s proposal. They want to give the impression that, through their permanent membership of the Security Council, they are going to be intimately involved in the implementation of Russia’s proposal.

Russia has gone along with this and co-operated with the production of a plan at the Geneva meeting, called Framework for Elimination of Syrian Chemical Weapons [6]. This includes a timetable laying down that Syria had to submit a declaration about its chemical weapons within a week (obviously agreed with Syria in advance) and to give inspectors immediate access to weapons sites. It also laid down that inspectors must have completed their verification of the accuracy of Syria’s declaration by November and all chemical weapons material and equipment must be eliminated in the first half of 2014.

This timetable was worked out at the Kerry/Lavrov meeting, despite the fact that the participants could not have been aware of the full facts about Syria’s chemical weapons, which will only be known in detail after the OPCW has verified Syria’s declarations by onsite inspections. Nor could the participants know the resources required/available to destroy the weapons in Syria or to remove them for destruction elsewhere, which is essential to laying down a realistic timetable.

Nevertheless the meeting produced a plan and, as announced to the world by Kerry at the post-meeting press conference [7], it seemed as if the OPCW was being bypassed and the Security Council would supervise the implementation of the plan and apply a big stick to Syria if, as he expected, it failed to co-operate fully.

Merely a proposal to the OPCW

However, if you listened carefully to Sergey Lavrov at the press conference, you got a different picture. In reality, the Framework document is an input document for the OPCW’s Executive Council’s consideration about how to proceed. According to a translation on the US State Department website, Lavrov said:

“And these documents … these are Russian and American proposals, and they should be considered first and first of all in the Organization for the Prohibition of Chemical Weapons. After this organization and its executive council adopt corresponding decisions, we will tell you exactly when the first inspection will start, and when these inspections will end.” [7]

The Framework document itself says:

“… the United States and the Russian Federation have committed to prepare and submit in the next few days to the Executive Council of the OPCW a draft decision setting down special procedures for expeditious destruction of the Syrian chemical weapons program and stringent verification thereof.”

The OPCW Executive Council has 41 members elected on a regional basis by the state parties to the Chemical Weapons Convention [8]. Both the US and Russia are members of the Council and are entitled to make proposals, but any decision by the Council is bound to take into account the advice of the OPCW’s own technical personnel, who are going to be intimately involved in the process of eliminating Syria’s of chemical weapons. It seems unlikely that at this stage a decision will include much detail about how the process will be carried out or anything more than an aspiration about when it will be completed.

What about a Security Council resolution?

On a Security Council resolution, the Framework document states:

“The United States and the Russian Federation commit to work together towards prompt adoption of a UN Security Council resolution that reinforces the decision of the OPCW Executive Council.”

According to this, the resolution will merely express support for the OPCW decision (whenever it emerges) and therefore doesn’t require the inclusion of enforcement measures under Chapter VII of the UN Charter.

However, the Framework document does allow for the possibility of a Chapter VII Security Council resolution in the event of non-compliance reported to the Security Council by the OPCW under Article VIII of the Convention:

“…in the event of non-compliance, including unauthorized transfer, or any use of chemical weapons by anyone in Syria, the UN Security Council should impose measures under Chapter VII of the UN Charter. The proposed joint US-Russian OPCW draft decision supports the application of Article VIII of the Chemical Weapons Convention, which provides for the referral of any cases of non-compliance to the United Nations General Assembly and the United Nations Security Council.”

Here’s what Lavrov had to say about this at the press conference:

“And we also agreed that any violations of procedures that would be approved by the Executive Committee of the OPCW concerning the arsenal of chemical weapons, as well as any facts of applying these chemical weapons, would be looked [at] in the Security Council. And if they are approved, the Security Council will take the measures – required measures, concrete measure – and we have agreed on that. …

“Of course, it does not mean that every violation that will be reported to the Security Council will be taken by word [sic]. Of course, we will investigate every case, because there are [sic] a lot of false information, pieces of information in the world, and we should be very cautious about every fact. And when we are sure, 100 percent, then we in the Russian Federation will be ready to adopt new resolution of the Security Council to embed the measures to punish the perpetrators of this violation, and it’s nonsense to continue the speculations on the matter today.”

Is disarmament a practical proposition?

Is the elimination of Syria’s chemical weapons a practical proposition, given the ongoing warfare there? According to John Kerry, the answer is YES – because the Assad regime has done a fine job of keeping control of them. Here’s what he said at the press conference in Geneva:

“One of the reasons that we believe this is achievable is because the Assad regime has taken extraordinary pains in order to keep control of these weapons. And they have moved them, and we know they’ve moved them. We’ve seen them move them. We watched this. And so we know they’ve continued to always move them to a place of more control.

“Therefore, since these weapons are in areas under regime control predominantly, Sergey raises questions that maybe the opposition has some here or there, and absolutely, fair is fair. Both sides have to be responsible.”

Isn’t it fortunate that the US has failed to topple the Assad regime, otherwise Syria’s chemical weapons might have fallen into the hands of God knows who – and rendered their elimination impossible?

Appendix The Chemical Weapons Convention: Some provisions

Article I bans the acquisition and use of chemical weapons and requires member states to destroy existing stocks and production facilities upon joining the Convention.

Article III requires a state party to submit declarations to the OPCW within 30 days of the Convention coming into force for that party. The declarations must provide a detailed inventory of the chemical weapons the state possesses and their locations and the locations of any chemical weapons production facilities – and a general plan for destruction of these weapons.

Article IV(4) requires that, immediately after submitting the Article III declarations, OPCW inspectors be granted access to the chemical weapons specified therein “for the purpose of systematic verification of the declaration through on-site inspection”.

Article IV(6) states that each state party is responsible for the destruction of its weapons. For parties that joined prior to the Convention came into force in 1997, destruction must begin “not later than two years after this Convention enters into force for it and shall finish not later than 10 years after entry into force of this Convention”, that is, destruction must be completed by 2007 (though a 5 year extension may be applied for).

Article IV(8) requires states joining after 2007 to destroy their weapons “as soon as possible” according to a procedure determined by the OPCW Executive Council.

Article VIII(2): “All States Parties to this Convention shall be members of the Organization [for the Prohibition of Chemical Weapons].”

Article VIII(36) “The Executive Council shall, in cases of particular gravity and urgency, bring the issue or matter, including relevant information and conclusions, directly to the attention of the United Nations General Assembly and the United Nations Security Council. It shall at the same time inform all States Parties of this step.”

Article XX: “Any State which does not sign this Convention before its entry into force may accede to it at any time thereafter.”

Article XXI(2): “For States whose instruments of ratification or accession are deposited subsequent to the entry into force of this Convention, it shall enter into force on the 30th day following the date of deposit of their instrument of ratification or accession.

Article XXIII: “The Secretary-General of the United Nations is hereby designated as the Depositary of this Convention …”

David Morrison

22 September 2013

References:

[1] www.opcw.org/index.php?eID=dam_frontend_push&docID=6357

[2] www.opcw.org/about-opcw/

[3] http://www.un.org/News/Press/docs/2013/sgsm15279.doc.htm

[4] www.opcw.org/news/article/opcw-to-review-request-from-syria

[5] www.opcw.org/

[6] www.state.gov/r/pa/prs/ps/2013/09/214247.htm

[7] www.state.gov/secretary/remarks/2013/09/214250.htm

[8] www.opcw.org/about-opcw/executive-council/current-officers-and-members/