This will actually be the second in a series of four blog posts about chemical weapons in international law. I know this will be boring for some people, but I'm soooo freaking excited that my friends want to talk about international law! Even if this will end within a week or so, I'm taking every opportunity I can to talk about my one true love in life.
The first blog post was about how Syria could be obliged to not use chemical weapons when it wasn't a party. This one is about the legality of stockpiling chemical weapons under international law. The next one will be about the use of chemical weapons by Israel during the last Gaza conflict. There's a fourth subject I wanted to talk about but now that I'm typing this, I forgot. So I'll update this post later to reflect that. Also, at some point I'll put a little cheat sheet of international law terms somewhere.
A friend wrote to ask me about that first blog to ask how stockpiling chemical weapons could be justified when the Convention on Chemical Weapons bans it. This is a great question that is slightly technical and relates to the relationship between treaty and customary law and I realised it was a big gap in my explanation. Sorry about that, but stick with me for one more international law post.
Let's start with the first and most important part: Article 1 of the Convention does prohibit stockpiling, acquiring, retaining or transferring chemical weapons:
And non-countries or wanna-be countries sometimes sign on to the Geneva Conventions because they find the protection offered there appropriate. The Palestinian Liberation Organisation agreed to adhere to the Geneva Conventions in 1989, more than 20 years before they would be recognised as a country (though not a member) by the United Nations General Assembly.
It would be really hard for a country to be recognized as independent and not sign onto the Geneva Conventions or abide by them even if they aren't a party. They've also been incorporated into domestic laws and military manuals and are often recognized by countries as customary law. In that sense, the treaty obligations themselves have become customary international law. The exact extent of this obligation is still debated in the international law community (though the International Committee of the Red Cross** (ICRC) has a super nifty, pretty authoritative guide on customary international law in this area).
The Chemical Weapons treaty may be customary law on its own. I'm just haven't previously been convinced that it is. The obligation to not use chemical weapons is clearly customary, but I haven't previously been convinced the obligations about stockpiling are yet. That said, this last debate on Syria may now convince me otherwise. Here's how:
States often used, relied upon and noted the Convention as a reason for not stockpiling. While this means they recognize an obligation not to stockpile, their reason for being legally bound appears to be just the treaty. They didn't seem to suggest there was an independent reason for not stockpiling these weapons, and other states didn't seem to suggest the mere stockpiling by these states was a danger. When the US talked about Iraq having Weapons of Mass Destruction, it was accompanied by accusations that Iraq was likely to use them in the future because it has used them in the past (something we apparently didn't mind so much the first time but really feared happening again). There have been very few discussions about stockpiling weapons that weren't actually about the use of chemical weapons. On this, states often did note independent reasons for not using chemical weapons, but the stockpiling wasn't really discussed as much.
With the Syria case, though, the US came out hard against the stockpiling by Syria, stating that for Syria to avoid US intervention, it needed to turn over and destroy its chemical weapons. Syria denied even stockpiling, suggesting it finds itself bound to not stockpile chemical weapons as well. With both the US and Syria suggesting Syria was bound not to stockpile weapons, and most of the rest of the world agreeing or remaining silent, it would appear we're at the point where stockpiling weapons is itself an independent obligation.
But, in my opinion, that's a pretty recent development. Even the US's position on Syria's chemical weapons was initially solely about their use. We were going to invade not because they had chemical weapons, but because they used chemical weapons. This discussion has evolved, though, this week and I think I would now say even having chemical weapons may be customary international law.
This brings me to one more important point about customary international law: sometimes it's really hard to know what is and isn't customary international law. We can sometimes know for sure what is customary international law, because a court with importance has said so (i.e., the International Court of Justice or the International Criminal Triubnals for Rwanda or Yugoslavia), or because there's really clear evidence that is indisputable. A lot of times, though, international law scholars can make a case but it's not an air-tight case. We have evidence, we think it's pretty sound, but maybe it's not.
Also, sometimes the idea of customary international law is massively overused. International law is only binding if a state consents to it. Both customary law and treaty are ways in which states consent. People want things to be legally binding so in the absence of a treaty, they say it's customary international law. My old law professor used to call this the "Tinkerbell doctrine": If people - meaning activists and scholars - clapped their hands enough and said they believed, the law could live.
I'm a little more skeptical on this, and think we need to be protective about what constitutes customary international law because that protects the democratic process in our own states. If the state is going to agree to be bound by something, it is constraining its ability to respond to internal, democratic changes in the future. That should be treated very carefully.
So, I'm not one to necessarily jump on a customary international law bandwagon, no matter how much I want something to be customary international law. That's why I said countries (meaning not parties to the treaty) can justify stockpiling weapons, but not using them. I should have been a little clearer on all of that in the last post. Sorry!
Either way, it looks like we have a breakthrough and Syria may be joining on to the obligation not to stockpile, which it denies doing, and all of that makes the customary international law on stockpiling a little more likely.
*I'm using country and not the technical term "state" because most of my audience is from the US and I don't want to have to explain that one right now.
**Fun Fact: While everyone things the Red Cross is a religious symbol, which is why the ICRC now also has Red Crescent societies, it wasn't intended as such. The Red Cross was actually intended to honour Switzerland. This may be simply because the founder of the ICRC, Jean-Henri Dunant, was a Swiss citizen, but it's also significant because Switzerland was a neutral country and the ICRC remains neutral in battle, serving both and working with both sides of conflicts with complete immunity (that's a treaty obligation, but it's probably customary law). Oh, and the Geneva Conventions were obviously signed in Geneva, which is in Switzerland (yes, it's also in Ohio, but that one didn't host the ICRC founding). the Ohio Geneva and inverting the colors of the US flag would just be very confusing). So the Red Cross is just the Swiss flag with inverted colours. Or colors, depending on where you live.
The first blog post was about how Syria could be obliged to not use chemical weapons when it wasn't a party. This one is about the legality of stockpiling chemical weapons under international law. The next one will be about the use of chemical weapons by Israel during the last Gaza conflict. There's a fourth subject I wanted to talk about but now that I'm typing this, I forgot. So I'll update this post later to reflect that. Also, at some point I'll put a little cheat sheet of international law terms somewhere.
A friend wrote to ask me about that first blog to ask how stockpiling chemical weapons could be justified when the Convention on Chemical Weapons bans it. This is a great question that is slightly technical and relates to the relationship between treaty and customary law and I realised it was a big gap in my explanation. Sorry about that, but stick with me for one more international law post.
Let's start with the first and most important part: Article 1 of the Convention does prohibit stockpiling, acquiring, retaining or transferring chemical weapons:
"1. Each State Party to this Convention undertakes never under any circumstances:Now, Some treaties can generate customary obligations. Perhaps the easiest treaties to point to on this are the Four Geneva Conventions relating to the treatment of people during war. They have 195 parties. There's only 193 countries in the UN. This means if you're a newbie country,* you're more likely to agree to the Geneva Conventions than you are to the UN Charter.
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;"
And non-countries or wanna-be countries sometimes sign on to the Geneva Conventions because they find the protection offered there appropriate. The Palestinian Liberation Organisation agreed to adhere to the Geneva Conventions in 1989, more than 20 years before they would be recognised as a country (though not a member) by the United Nations General Assembly.
It would be really hard for a country to be recognized as independent and not sign onto the Geneva Conventions or abide by them even if they aren't a party. They've also been incorporated into domestic laws and military manuals and are often recognized by countries as customary law. In that sense, the treaty obligations themselves have become customary international law. The exact extent of this obligation is still debated in the international law community (though the International Committee of the Red Cross** (ICRC) has a super nifty, pretty authoritative guide on customary international law in this area).
The Chemical Weapons treaty may be customary law on its own. I'm just haven't previously been convinced that it is. The obligation to not use chemical weapons is clearly customary, but I haven't previously been convinced the obligations about stockpiling are yet. That said, this last debate on Syria may now convince me otherwise. Here's how:
States often used, relied upon and noted the Convention as a reason for not stockpiling. While this means they recognize an obligation not to stockpile, their reason for being legally bound appears to be just the treaty. They didn't seem to suggest there was an independent reason for not stockpiling these weapons, and other states didn't seem to suggest the mere stockpiling by these states was a danger. When the US talked about Iraq having Weapons of Mass Destruction, it was accompanied by accusations that Iraq was likely to use them in the future because it has used them in the past (something we apparently didn't mind so much the first time but really feared happening again). There have been very few discussions about stockpiling weapons that weren't actually about the use of chemical weapons. On this, states often did note independent reasons for not using chemical weapons, but the stockpiling wasn't really discussed as much.
With the Syria case, though, the US came out hard against the stockpiling by Syria, stating that for Syria to avoid US intervention, it needed to turn over and destroy its chemical weapons. Syria denied even stockpiling, suggesting it finds itself bound to not stockpile chemical weapons as well. With both the US and Syria suggesting Syria was bound not to stockpile weapons, and most of the rest of the world agreeing or remaining silent, it would appear we're at the point where stockpiling weapons is itself an independent obligation.
But, in my opinion, that's a pretty recent development. Even the US's position on Syria's chemical weapons was initially solely about their use. We were going to invade not because they had chemical weapons, but because they used chemical weapons. This discussion has evolved, though, this week and I think I would now say even having chemical weapons may be customary international law.
This brings me to one more important point about customary international law: sometimes it's really hard to know what is and isn't customary international law. We can sometimes know for sure what is customary international law, because a court with importance has said so (i.e., the International Court of Justice or the International Criminal Triubnals for Rwanda or Yugoslavia), or because there's really clear evidence that is indisputable. A lot of times, though, international law scholars can make a case but it's not an air-tight case. We have evidence, we think it's pretty sound, but maybe it's not.
Also, sometimes the idea of customary international law is massively overused. International law is only binding if a state consents to it. Both customary law and treaty are ways in which states consent. People want things to be legally binding so in the absence of a treaty, they say it's customary international law. My old law professor used to call this the "Tinkerbell doctrine": If people - meaning activists and scholars - clapped their hands enough and said they believed, the law could live.
I'm a little more skeptical on this, and think we need to be protective about what constitutes customary international law because that protects the democratic process in our own states. If the state is going to agree to be bound by something, it is constraining its ability to respond to internal, democratic changes in the future. That should be treated very carefully.
So, I'm not one to necessarily jump on a customary international law bandwagon, no matter how much I want something to be customary international law. That's why I said countries (meaning not parties to the treaty) can justify stockpiling weapons, but not using them. I should have been a little clearer on all of that in the last post. Sorry!
Either way, it looks like we have a breakthrough and Syria may be joining on to the obligation not to stockpile, which it denies doing, and all of that makes the customary international law on stockpiling a little more likely.
*I'm using country and not the technical term "state" because most of my audience is from the US and I don't want to have to explain that one right now.
**Fun Fact: While everyone things the Red Cross is a religious symbol, which is why the ICRC now also has Red Crescent societies, it wasn't intended as such. The Red Cross was actually intended to honour Switzerland. This may be simply because the founder of the ICRC, Jean-Henri Dunant, was a Swiss citizen, but it's also significant because Switzerland was a neutral country and the ICRC remains neutral in battle, serving both and working with both sides of conflicts with complete immunity (that's a treaty obligation, but it's probably customary law). Oh, and the Geneva Conventions were obviously signed in Geneva, which is in Switzerland (yes, it's also in Ohio, but that one didn't host the ICRC founding). the Ohio Geneva and inverting the colors of the US flag would just be very confusing). So the Red Cross is just the Swiss flag with inverted colours. Or colors, depending on where you live.
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