As inspectors from the Organization for the Prohibition of Chemical Weapons begin their inspections in Syria, they could find themselves on a collision course with the United Nations Security Council resolution that put them there in the first place.
Created in 1997, the OPCW’s job is to implement the Chemical Weapons Convention, a treaty that requires all countries that join to eliminate their chemical weapons stocks and related facilities. Syria is the 190th country to join the treaty; the 189th was Somalia in June. The OPCW is independent of the UN, although it is authorized to bring grave violations of the treaty to the attention of the Security Council and the General Assembly. OPCW inspectors verify treaty compliance at facilities identified by nations. Except in rare instances, they are not investigators. They don’t ferret out secret chemical weapons sites, or even actually destroy chemical weapons. They monitor and certify the process. Indeed, the Chemical Weapons Convention inspection regime is deliberately designed to protect the military and industrial secrets of the countries that join. It is far more limited than, for example, the mandate of the U.N. inspectors who oversaw the destruction of Iraq’s weapons after the first Gulf War.
Both the UN and the OPCW have adopted resolutions aimed at eliminating Syria’s chemical weapons. But there are important differences between the two, which set the stage for a conflict between what the OPCW is permitted to do and what the UN wants it to do.
In fact, had it been so inclined, Syria could have caused trouble right from the start. The Security Council obliged Syria to “accept personnel designated by the OPCW or the United Nations.” This easily overlooked provision indicates that Syria has no discretion to reject to any of the persons slated to conduct inspections on its territory. But the Chemical Weapons Convention requires the OPCW to inform Syria in advance of which inspectors it will send and permits Syria to object. This has long been considered an important safeguard. It allows nations to exclude from their sensitive defense installations people who they suspect may not be completely independent. Unsurprisingly, the OPCW adheres to its own rules in its Syria resolution. It authorizes emergency meetings of the OPCW’s governing body if Syria delays in accepting inspectors, but does not quash Syria’s right to object.
Syria has not raised this particular issue. However, another far larger issue looms: the clash between the Chemical Weapons Convention and the Security Council resolution over where Syria’s weapons will be eliminated.
While getting rid of munitions and the equipment used to fill them is a relatively low-tech endeavor, destroying the payload toxic chemicals is complicated by the need to protect the health and safety of humans and the environment. Given that Syria is embroiled in a civil war, it’s not surprising that the Security Council has called for its stockpile to be shipped out of the country for destruction. Nations are authorized to “acquire, control, transport, transfer and destroy chemical weapons … to ensure the elimination of the Syrian Arab Republic’s chemical weapons program.” But if Syria sent chemical weapons to another country, it would be in direct violation of the Chemical Weapons Convention it just signed. States that join the treaty are bound to “never under any circumstances … transfer, directly or indirectly, chemical weapons to anyone.” (A requirement reiterated in the UN resolution). Since the treaty similarly bans countries from “acquiring” chemical weapons, any nation that received the weapons would also violate the Convention.
No doubt the framers of the Chemical Weapons Convention did not foresee a situation such as Syria. There is some flexibility in the Convention: in order to preserve deadlines for destruction of chemical weapons that run from the date the treaty came into force, the OPCW can develop special measures for nations that join late. But such special measures surely cannot violate a foundational article of the treaty. Indeed, the OPCW’s resolution makes no mention of the possibility of transferring weapons out of Syria suggesting that this issue has not been settled.
The mismatch between the UN’s plan and that of the OPCW reflects the two organizations’ differing priorities. The Security Council is concerned with solving the immediate problem of Syria’s chemical weapons, while the OPCW is mindful of preserving a rubric that has served it well for 16 years and under which it must continue to operate long after this mission is completed.
The differences between the two resolutions also highlight an important legal conundrum: can the UN Security Council oblige a country to violate its treaty obligations? Under the UN Charter, the Council has broad authority to act to restore international peace and security. It has the greatest clout when it is acting under Chapter VII of the Charter, which allows it to impose sanctions and authorize the use of military force. But there are questions about whether the Council was acting under this heading when it passed its resolution on Syria’s chemical weapons. The type of treaty may influence the analysis as well. One can envision a situation in which a Security Council resolution requires a country to ignore a bilateral treaty, but the issue becomes much harder when countries are asked to ignore a core provision of a widely accepted multi-lateral treaty like the Chemical Weapons Convention.
As a practical matter, this discrepancy provides an opportunity for Syria to resist attempts to move agent out of the country and make it difficult for OPCW personnel to monitor the transfer and destruction. To avoid these pitfalls, the OPCW and the UN will have to resolve matter at the latest by November 15, 2013 when the OPCW will finalize detailed destruction requirements for Syria. One way might be to categorize the movement of chemical weapons for purposes of destruction as something other than the “transfer” prohibited by the treaty. Another, possibly supplementary, option would be to arrange the removal of weapons from Syria so that it can be characterized as being undertaken by the OPCW or the UN – rather than a country. A third alternative is that the mission is conducted under the auspices of the UN, with the OPCW assisting. None of these are particularly elegant solutions and there may be others. In any event, the issue must be settled soon to avoid further uncertainty about an already difficult undertaking.
Faiza Patel is Co-Director of the Liberty & National Security Program at NYU Law's Brennan Center for Justice