Not a single shred of evidence.
–Bashar al-Assad, Charlie Rose Interview, 9/9/2013
The world reacts by asking: if you cannot count on international law, then you must find other ways to ensure your security. Thus a growing number of countries seek to acquire weapons of mass destruction. This is logical: if you have the bomb, no one will touch you. We are left with talk of the need to strengthen nonproliferation, when in reality this is being eroded.
–President Putin, The New York Times, 9/11/2013
We don’t have an actual, verifiable deal that will begin that process. But the distance that we’ve traveled over these couple of weeks is remarkable.
–President Obama, This Week on ABC, 9/15/2013
We welcome these agreements. On the one hand, they will help Syrians come out of the crisis, and on the other hand, they prevented the war against Syria by having removed a pretext for those who wanted to unleash it.
–Syrian National Reconciliation Minister Ali Haidar, RIA Novosti, 9/15/2013
If the all the United States ever wanted to get rid of in Syria were chemical weapons (CW), then the Obama-Putin Framework for Elimination of Syrian Chemical Weapons agreed to in Geneva could have been negotiated months ago. But until Obama threatened to use force to weaken the al-Assad regime, predicated on its use of CW, Obama’s policy was that “Assad needs to go.” Now, Obama is “maintaining our readiness” to use force, but U.S. policy appears to be that al-Assad’s chemical weapons must go after he used them, by not later than the end of the first half of 2014 (July 2, 2014). On top of adjustments to U.S. policy, there is confusion as to where Syrian CW came from and disagreement as to which Syrians used them.
For supporters of arms control, or at least the Chemical Weapons Convention (CWC), the possibilities presented in Syria seem positive. The Framework would “facilitate the fulfilment of obligations by Syria deriving from the Chemical Weapons Convention, which it has decided to join.” One of the remaining five countries that have not signed or acceded to the CWC, Syria, a possessor state, says that it now will.
Multilaterally, the burden to verify the value of our payoff (al-Assad having obtained his) becomes the burden of the United Nations and its Security Council and the Organization for the Prohibition of Chemical Weapons (OPCW) and its 41-nation Executive Council. Provisional application of a treaty is permissible where the negotiating parties have agreed to it or if the plain terms of a treaty call for it. The CWC contains no mention provisional application of itself, in whole or in part, even though that is explicitly what is contained in the Geneva Framework, which Russia and the United States, but not Syria, negotiated, and what Syria has agreed to, but not clearly in whole or even in which part.
The Obama-Putin Geneva Framework specifies that the UN and the OPCW shall have “the immediate and unfettered right to inspect any and all sites in Syria.” The only analogous language in the CWC concerns Challenge Inspections, governed under the procedures of Article IX and Part X of the CWC Annex on Implementation and Verification (the “Verification Annex”). These provisions require “inspection of any facility or location in the territory or in any other place under the jurisdiction or control of a State Party requested by another State Party” if the Executive Council does not block it. While the OPCW Technical Secretariat routinely conducts exercises for Challenge Inspections, no Challenge Inspection has taken place since no State Party to the CWC has requested one.
Syria is not yet a state that is a party to the CWC. As a factual matter, the United States and Russia are Permanent Members of the Security Council but would be “observers” as the term is defined in the CWC Verification Annex (defined term number 20, Part I of the Verification Annex) to a kind of challenge inspection that is not clearly the kind of inspection envisioned by the CWC but is by the Geneva Framework. However, by a two-thirds vote, the OPCW Executive Council can block any Challenge Inspection under the CWC. Whether or even if the Executive Council would try to do this in a period of provisional application is unclear. The inspections being proposed in the Geneva Framework will not clearly rely on the CWC for authority. So we can speculate that any inspections in Syria will not be Challenge Inspections under the CWC before Syria is a CWC State Party–but speculation is no substitute for the kind of clarity that will be difficult to find in the Security Council or the Executive Council.
While the stakes can diminish the prospect that the Executive Council would vote against an actual Challenge Inspection in Syria, the same costs could also ensure such an outcome. Doubts many have about the ability of the OPCW Technical Secretariat to conduct a Challenge Inspection combine with the legally vague circumstances surrounding Syrian obligations to do more than declare and permit removal of CW under whatever obligations are (selectively) culled from the CWC into a novel provisional application of its terms. After Syria becomes a State Party to the CWC there is the very real possibility that the Challenge Inspection scenario provided for in the CWC will be tested, for the first time, and in Syria. If a Challenge Inspection in Syria is tied to the threat to use force, then the scenario in which the Executive Council blocks it seems more likely.
The prospect of a fight in the OPCW Executive Council over a Challenge Inspection has been a worry for CWC supporters ever since the U.S. Senate debated the treaty in 1996-1997. But the prospect for disagreement over a Syrian Challenge Inspection is real and sets up a further area of cloudy process in the provisional period of the CWC’s application in Syria: What if the Security Council’s resolution came into conflict with a right Syria finds in the CWC and/or a decision in the OPCW Executive Council arising out of rights Syria has claimed in the CWC? While Article 103 of the UN Charter appears to make it clear that obligations under the Charter are superior to other international agreements, and could prevail against any Syrian rights under the CWC, this is largely a political matter, not a legal one, which, naturally, brings us right back to the fact that two Permanent Members of the Security Council–the United States and Russia–don’t appear to agree on specifics.
Great care is required under the CWC for the conduct of a Challenge Inspection. As another erstwhile friend of the United States, China, has observed, “Whether a challenge inspection is applied rightly and justifiably and whether an abuse can be effectively prevented or otherwise penalised will have a significant impact on the authority and effectiveness of the Convention, and also on confidence and cooperation among States Parties.” Any future Challenge Inspection in Syria could arguably be seen as the most critical test faced by the OPCW, the Executive Council, and indeed, the CWC itself.
The world will have to act quickly under the provisional period the Geneva Framework contemplates. Once Syria joins the CWC, presumably it will have full use of its rights under it. Syria’s ally Iran, a State Party to the CWC sitting on the Executive Council, clearly has anticipated these circumstances. Last April, at the Third CWC Review Conference, the Islamic Republic submitted a statement that noted “On alleged use, any alleged use investigation both involving a State Party or State not Party to the Convention should be considered merely within the scope of the provisions of the Convention.” This view would appear to focus more narrowly on investigations involving the use of CW under Part XI of the CWC Verification Annex. Specifically, however, on Challenge Inspections, Iran has had this to say:
The OPCW should conclude the outstanding issues regarding challenge inspections. Given the political and potential damage of abusive requests for challenge inspections and at the same time the importance of this mechanism for compliance, we need to address many areas for implementation of the provisions of the Convention as was emphasised by the previous review conferences such as the timing of notification, the inspection equipment, the financial aspects, punishment of abuse, etc.
So, are these first inspections Challenge Inspections, special inspections based on and like Challenge Inspections, or something else altogether?