Evangelia Linaki, Assistant Legal Officer, the Office of the Legal Adviser, Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW), Hague, Netherlands ((Master of Laws, (LL.M.) Public International Law (Specialization: International Humanitarian Law), Leiden University; Acknowledgements: Sincere thanks to Vishnu Warrier and the team of The Lex-Warrier: Online Law Journal for their support and collaboration throughout the years, to Mr. Olufemi Elias and Mr. Grant Dawson for their invaluable inputs and support, as well as to family, friends and colleagues for their support and faith. The views expressed herein are those of the author alone and do not necessarily reflect the views of the OPCW or the United Nations in general.)).
Doubts have been raised as to whether the multitude of legal instruments that exist in many fields of international law, such as disarmament and human rights, interact or contribute in some way to the promotion of each other’s object and purpose. The purpose of this article is to explore whether the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction addresses human rights either explicitly or implicitly. The provisions of the CWC will be examined to determine the extent to which obligations assumed under the Convention can be regarded as being relevant to particular human rights and as contributing to their promotion and respect.
“Begin with a charter of Duties of Man … and I promise the rights will follow as spring follows winter” was the advice provided by Mahatma Gandhi to the English write H. G. Wells, who had drawn up a list of human rights in 1940 ((Johnson, Richard L., Gandhi’s Experiments with Truth: Essential Writings by and about Mahatma Gandhi, Lexington Books, p. 239 (2006).)). In contemporary times, when a multitude of legal instruments exist in many fields of international law, such as disarmament and human rights, one could question whether these interact or contribute in some way to the promotion of each other’s object and purpose or whether the obligations undertaken under a specific legal instrument can contribute to the attainment of a right covered by another instrument.
From this perspective, it would be interesting to look into the interaction between one of the most comprehensive and successful ((The Chemical Weapons Convention has achieved universality with 191 States Parties, whereas 90% of the world’s declared stockpile of 72,525 metric tons of chemical agent have been destroyed (See www.opcw.org, accessed 8/8/2015).))disarmament treaties, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the “Convention”, or the “Chemical Weapons Convention”, or the “CWC”), and instruments related to human rights. Therefore, this article will attempt to look into whether the CWC could be interpreted in such a way as to identify its contribution, if any, to the respect and promotion of human rights.
This article will begin with an overview on the genesis of the Chemical Weapons Convention and the Organisation tasked with its implementation, the Organisation for the Prohibition of Chemical Weapons. Thereafter, an attempt will be made to identify and interpret provisions of the CWC that could be regarded as having relevance to human rights, in accordance with the general rule of interpretation enshrined in the 1969 Vienna Convention on the Law of Treaties (the “VCLT”), or whether the text of and the obligations undertaken by States Parties under the Convention contribute to the promotion and respect of human rights in light of specific legal instruments pertaining to human rights.
Chemical weapons have been used in various forms since antiquity, ((For example, poison gas was used during the Peloponnesian War between Athens and Sparta, Greece, in 431‑404 BC, whereas the Chinese used toxic smoke to poison enemy mine workers (See Coleman, Kim, A History of Chemical Warfare, Palgrave Macmillan, p. 6 (2005) and Judson, Karen, Chemical and Biological Warfare (Open for Debate), Benchmark Books, pp. 64-66 (2004)).))and prohibitions related to their use can be traced in ancient civilizations. The modern prohibition of the use of chemical weapons can, however, be traced back to the 1899 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, which provides, in Article 23(a), that “[…] it is especially prohibited […] to employ poison or poisoned arms […]”. ((Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 29 July 1899, available at https://www.icrc.org/ihl/INTRO/150?OpenDocument (accessed 8/8/2015).))It is also worth mentioning that, in 1899, the Declaration (IV,2) concerning Asphyxiating Gases, by which the Contracting Powers agreed to “abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases”, was also adopted ((Declaration (IV,2) concerning Asphyxiating Gases, The Hague, 29 July 1899, available at https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=B0625F804A9B2A64C12563CD002D66FF (accessed 8/8/2015).)). A few years later, the 1907 Convention (IV) respecting the Laws and Customs of War on Land and its annexed Regulations concerning the Laws and Customs of War on Land would enshrine the same prohibition of use of poison or poisoned arms ((Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October 1907, Article 23(a) of the Regulations, available at https://www.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=4D47F92DF3966A7EC12563CD002D6788 (accessed 8/8/2015).)).
Despite the existing legal framework, chemical weapons were extensively used during World War I, with the first large-scale use of chemical weapons to have been conducted by the German army releasing almost 160 tons of chlorine gas over Allied troops in Ypres, Belgium, on 22 April 1915 ((Spiers, Edward M., Chemical Warfare, Palgrave, pp. 15-16 (1986).)). In view of the great number of victims of chemical attacks during World War I on both sides to the conflict, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (the “1925 Geneva Protocol”), prohibiting the use of asphyxiating, poisonous or other gases, was adopted in 1925 ((Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, June 17, 1925, available at https://www.icrc.org/ihl/INTRO/280?OpenDocument (accessed 8/8/2015).)).
In spite of this important step, many States retained their chemical weapons stockpiles for fear of retaliation. Indeed, there were also instances of use of chemical weapons, including in Ethiopia, Morocco and China in the decades after World War I. It was only in 1968 that Sweden proposed and succeeded in including the issue of chemical and biological weapons in the agenda of the then Eighteen-Nation Committee on Disarmament, in Geneva ((Bothe, Michael et al. (eds.), The New Chemical Weapons Convention: Implementation and Prospects, Springer, First Edition, pp. 22-23 (1999).)).
Although the prohibition of biological weapons was given priority with the adoption of the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (the “Biological Weapons Convention”)on 16 December 1971, the States Parties to this Convention acknowledged in the preamble that the prohibition of the development, production, and stockpiling of chemicals and biological weapons and their destruction would contribute to complete disarmament. However, what is of utmost importance is stipulated by Article IX, according to which:
“Each State Party to this Convention affirms the recognised objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes ((Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, London, Moscow and Washington, 10 April 1972, available at http://disarmament.un.org/treaties/t/bwc/text (accessed 8/8/2015).)).”
After the adoption of the Biological Weapons Convention, several drafts of the Chemical Weapons Convention were submitted ((For a detailed record of the negotiations on the CWC, see Bothe, Michael, supra note 4, pp. 17-36.)), until its adoption by the Geneva Conference on Disarmament on 3 September 1992 ((Report of the Conference on Disarmament, “Official Records of the General Assembly, Forty‑Seventh Session, Supplement No. 27”, paras. 73-74 (UN Doc. A/47/27).)). Following the request of the United Nations General Assembly, the CWC was opened for signature by the Secretary‑General in his capacity as Depository on 13 January 1993 and entered into force on 29 April 1997 ((Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (UN Doc. A/RES/47/39, dated 16 December 1992).)).
The CWC, with a total of 191 States Parties ((See www.opcw.org (accessed 8/8/2015).)), constitutes a comprehensive disarmament and non-proliferation regime, which encompasses the prohibition of not only the use, but also the development, production, and stockpiling of chemical weapons. The destruction of all chemicals weapons is also mandatory under the Convention. The CWC was the first legal instrument in the area of chemical weapons disarmament to have established a supervisory mechanism to monitor the implementation of the Convention.
The CWC consists of twenty-four Articles and three Annexes, namely the Annex on Chemicals, the Annex on Implementation and Verification, and the Annex on the Protection of Confidential Information. The main objectives of the CWC are the destruction of the remaining chemical weapons stockpiles, the non-proliferation of chemical weapons, the assistance and protection of States Parties against chemical weapons, and the international cooperation on the promotion of the peaceful utilisation of chemical substances.
The Chemical Weapons Convention: A Human Rights Reading
The Chemical Weapons Convention does not make any explicit reference to the respect or promotion of human rights. Could it be argued, however, that the Convention can be interpreted in such way as to show that it indeed contributes to respect for human rights?
As a starting point, Article 31 of the VCLT, reflecting the general rule of customary international law on the interpretation of an international treaty ((Case concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad), Judgment of 3 February 1994, 1994 ICJ Reports 6, para. 41, available at http://www.icj-cij.org/docket/files/83/6897.pdf (accessed 8/8/2015).)), should be employed. As per Article 31(1),:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose ((Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, available at https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf (accessed 8/8/2015).)).”
As it is evident from Article 31(1), the interpretation of a treaty must take place in good faith, an element deriving directly from the rule pacta sunt servanda enshrined in Article 26 of the VCLT ((According this rule and Article 26 of the VCLT, “[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith” (emphasis added) (See id.).)). Furthermore, a textual approach has to be followed for the interpretation of a treaty, meaning that the terms of the treaty have to be given their ordinary meaning, as “the parties are to be presumed to have that intention which appears from the ordinary meaning of the terms used by them”. ((Yearbook of the International Law Commission, 1966, Vol. II, Draft Articles on the Law of the Treaties with Commentaries, p. 221, available at http://legal.un.org/ilc/texts/instruments/english/commentaries/1_1_1966.pdf (accessed 8/8/2015).))In addition, the ordinary meaning of a term must be determined in light of the context of the treaty, as well as of the object and purpose of the treaty ((See id.)). With regard to the context, it should be noted that the context of a term refers to the treaty as a whole and not only to the article or specific provision where the term appears ((Competence of the ILO in regard to International Regulation of the Conditions of the Labour of Persons Employed in Agriculture, Advisory Opinion of 12 August 1922, P.C.I.J, Series B, No. 2, p. 23; See id.)).
It should also be noted that no hierarchy exists among the abovementioned; rather it was intended that “the application of the means of interpretation in the article would be a single combined operation […] because the [International Law] Commission desired to emphasise that the process of interpretation is a unity and that the provisions of the article [of the VCLT entitled the “General Rule of Interpretation”] form a single, closely integrated rule ((See Yearbook of the International Law Commission, supra note 18, pp. 219-220.)).”
With the above in mind, an effort will be made to identify any provisions which could be of relevance to human rights or which could be considered as contributing to the overall reinforcement and promotion of specific human rights set forth in legal instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Chemical Weapons Convention and Human Rights In General
The Chemical Weapons Convention does not incorporate any explicit reference to human rights either in its Preamble, its Articles or its Annexes. However, taking a closer look at its Preamble, which forms part of the treaty for the purposes of interpretation ((See Yearbook of the International Law Commission, supra note 18.)), the second preambular paragraph provides that the States Parties to the Convention:
“Desiring to contribute to the realisation of the purposes and principles of the Charter of the United Nations” ((Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, available at https://www.opcw.org/index.php?eID=dam_frontend_push&docID=6357 (accessed 8/8/2015).)).
According to Article 1(3) of the Charter of the United Nations, one of the purposes of the United Nations is “to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion” (emphasis added) ((Charter of the United Nations, San Francisco, 26 June 1945, available at http://www.un.org/en/documents/charter/chapter1.shtml (accessed 8/8/2015).)).
Reading the abovementioned provisions together, it could be argued that indeed States Parties to the Chemical Weapons Convention, by explicitly expressing their desire to contribute to the realisation of the purposes of the United Nations, are also contributing to the promotion of the respect of human rights through the observance of their obligations undertaken under the Convention and through the cooperation foreseen therein. The real question is, however, to identify which rights are relevant here – something which will be explored in the next sections.
Moreover, features pertaining to the regulation of warfare can be found throughout the Convention, thus making the Convention relevant to international humanitarian law. For example, some of the general obligations undertaken by States Parties to the CWC relate to the non-engagement in any military preparations to use chemical weapons ((Chemical Weapons Convention, supra note 23, Article I(1)(c).))and the prohibition of the use of riot control agents as a method of warfare ((Chemical Weapons Convention, supra note 23, Article I(5).)).
In connection to international humanitarian law, the International Court of Justice confirmed the parallel applicability of international humanitarian law and international human rights law, by finding that “[…] the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency […] ((Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, para. 25, available at http://www.icj-cij.org/docket/files/95/7495.pdf (accessed 8/8/2015).)).” This shift from the strict separation between international humanitarian law and international human rights law, with the former applying at war and the latter at peace, to an approach of convergence supporting the cumulative application of both bodies of law with the aim of attaining the most effective protection of human beings, was voiced by the United Nations Secretary-General in 1999. The United Nations Secretary-General stated that “[i]nternational humanitarian and human rights law set out the rights of civilians and the obligations of combatants during time of conflict”, and specifically recommended ways in which the United Nations Security Council could ensure the protection of civilians in armed conflicts through the respect of both international humanitarian law and international human rights law ((UN Doc. S/1999/957, dated 8 September 1999, paras. 3 and 35, available at http://www.un.org/en/ga/search/view_doc.asp?symbol=S/1999/957 (accessed 8/8/2015).)).
In view of the above, it is evident that the Chemical Weapons Convention, being applicable both in time of war and peace and through its features of international humanitarian law, which is in turn linked and interacts with international human rights law during an armed conflict, contributes to the further reinforcement of the respect of human rights at all circumstances.
The Right to Life
The right to life is stipulated in Article 3 of the Universal Declaration of Human Rights, which provides that “everyone has the right to life, liberty and security of person”. ((Universal Declaration of Human Rights, 10 December 1948, available at http://www.un.org/en/documents/udhr/index.shtml (accessed 8/8/2015).))It is worth noting that it is supported that the Universal Declaration of Human Rights has been elevated to customary international law and, therefore, it binds all States ((Hessbruegge, J.A., Human Rights Violations Arising from Conduct of Non-State Actors, 11 Buff. Hum. Rts. L. Rev. 21, at 36 (2005).)). In addition, Article 6(1) of the International Covenant on Civil and Political Rights provides that “[e]very human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life ((International Covenant on Civil and Political Rights, 19 December 1966, available at https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf (accessed 8/8/2015).)).”
The Chemical Weapons Convention does not contain any reference to the right to life as formulated in the abovementioned instruments. There are grounds, however, for considering that, through several of the Convention’s provisions and through its object and purpose, it is relevant to the respect for the right to life.
The sixth preambular paragraph, for example, provides for the determination of the States Parties to the Convention, for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of the Convention while complementing the obligations undertaken under the 1925 Geneva Protocol ((Chemical Weapons Convention, supra note 23.)). Most importantly, States Parties undertake under the Convention never under any circumstances to use chemical weapons and to assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under the Convention ((Chemical Weapons Convention, supra note 23, Article I(1)(b) and (d).)).
Apart from the above tangible provisions of the Convention, it is important to take account of the Convention’s object and purpose. Its first and foremost purpose is disarmament – the complete elimination of an entire category of weapons subject to independent international verification. However, as is evident from the historical evolution of the legal prohibition of the use of chemical weapons, the creation of such an elaborate disarmament regime was driven by the overall abhorrence towards the lethal and incapacitating effects of chemicals on human beings. The condemnation by the “general opinion of the civilized world” of the use of asphyxiating, poisonous or other gases is explicitly stipulated in the first preambular paragraph of the 1925 Geneva Protocol ((1925 Geneva Protocol, supra note 8.)), whose principles, objectives and obligations were further reaffirmed by the Chemical Weapons Convention ((Chemical Weapons Convention, supra note 23, fourth preambular paragraph.)). The motivation behind the adoption of the Chemical Weapons Convention was to ensure that no more casualties would occur because of the use of chemical weapons. With the above in mind, the Chemical Weapons Convention contributes to the respect of the right to life, as States Parties are prohibited from using chemical weapons, which can have lethal effects on human beings.
Economic, Social and Cultural Rights
As per Article 22 of the Universal Declaration of Human Rights, everyone, as a member of society, is entitled to the realisation of the economic, social and cultural rights indispensable for their dignity and free development of their personality, whereas, according to Article 27, everyone has the right to share in scientific advancement and its benefits ((Universal Declaration of Human Rights, supra note 29.)).
Furthermore, the International Covenant on Economic, Social and Cultural Rights recognise everyone’s right to enjoy the benefits of scientific progress and its applications ((International Covenant on Economic, Social and Cultural Rights, 16 December 1966, Article 15(1)(b), available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx (accessed 8/8/2015).)). In connection to this right, “the steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture”, whereas “the States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity ((See id., Article 15(2) and (3).)).” Lastly, the benefits to be derived from the encouragement and development of international contacts and co-operation in the scientific and cultural fields are also recognized under the Covenant ((See id., Article 15(4).)).
The Chemical Weapons Convention may be considered relevant, at least indirectly, in relation to economic, social and cultural rights, as States Parties have explicitly expressed their desire to promote free trade in chemicals, international cooperation and exchange of scientific and technical information relating to chemical activities for purposes not prohibited under the Convention (such as pharmaceutical, agricultural, medical, industrial, research), in order to enhance States Parties’ economic and technological development ((Chemical Weapons Convention, supra note 23, ninth preambular paragraph.)).
Most importantly, Article XI of the Convention deals with economic and technological development, and provides that the provisions of the Convention shall be implemented in such way as not to hamper the economic or technological development of States Parties and international cooperation in the field of chemical activities for peaceful purposes. Moreover, States Parties have the right, individually or collectively, to conduct research with, develop, produce, acquire, retain, transfer and use chemicals, whereas they undertake to facilitate and have the right to participate in the fullest possible exchange of chemicals relating to the development and application of chemistry for purposes not prohibited under the Convention ((See id., Article XI(2)(a) and (b).)).
In addition, States Parties undertake not to maintain any restrictions that would restrict or impede trade, the development and the promotion of scientific and technological knowledge in the field of chemistry for peaceful purposes, and to review their existing national regulations in the field of trade of chemicals to render them consistent with the object and purpose of the Convention ((See id., Article XI(2)(c) and (e).)).
It is worth noting that the obligations undertaken by States Parties to the CWC are owed to the rest of the States Parties thereto, whereas the rights to be enjoyed by the States Parties relate to States as such and they are not directly owed to individuals. In contrast, the obligations enshrined in the international human rights instruments are obligations of States owed to individuals. At first sight, one could argue that the Chemical Weapons Convention and the International Covenant on Economic, Social and Cultural Rights are not interrelated. However, by encouraging international cooperation among all States Parties on the exchange of chemicals and scientific and technological knowledge with the aim of achieving economic and technological development, the CWC may be considered to contribute to and facilitate the fulfillment of the obligations pertaining to the realisation of economic, social and cultural rights and undertaken under the International Covenant on Economic, Social and Cultural Rights.
The Right to Health and a Healthy Environment
Article 12(1) of the International Covenant on Economic, Social and Cultural Rights provides that “[t]he States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” One of the steps to ensure the realisation of this right refers to the improvement of all aspects of environmental and industrial hygiene ((International Covenant on Economic, Social and Cultural Rights, supra note 37, Article 12(2)(b).)).
Moreover, the right to a healthy environment was recognised in a soft law instrument, the Declaration of the United Nations Conference on the Human Environment, which provides that “[m]an has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations ((Declaration of the United Nations Conference on the Human Environment, 16 June 1972, Principle 1, available at http://www.unep.org/Documents.Multilingual/Default.asp?documentid=97&articleid=1503 (accessed 8/8/2015).)). […]”
Within this context, the Chemical Weapons Convention specifically obliges States Parties to assign the highest priority to ensuring the safety of people and the protection of the environment while implementing the Convention ((Chemical Weapons Convention, supra note 23, Article VII(3).)). Most importantly, Article IV(10) stipulates that “[e]ach State Party, during transportation, sampling, storage and destruction of chemical weapons, shall assign the highest priority to ensuring the safety of people and to protecting the environment. Each State Party shall transport, sample, store and destroy chemical weapons in accordance with its national standards for safety and emissions.” A similar provision is enshrined in Article V(11) with respect to the destruction of chemical weapons production facilities, as well as in paragraph 7 of Part VI of the Verification Annex on the production of Schedule 1 chemicals.
Taking the above analysis into account, it can be easily concluded that the Chemical Weapons Convention, although not referring explicitly to human rights, does not exclude the notion of human rights as such; quite the contrary, it can be argued that one of the desires of States Parties to the Convention is to, inter alia, contribute to the respect and promotion of human rights by supporting the principles and objectives of the United Nations Charter. Apart from such finding, the Chemical Weapons Convention, through its elements pertaining to international humanitarian law, whose applicability runs simultaneously with international human rights law during an armed conflict, can also be considered as reflecting the concept of human rights and contributing to the respect thereof.
Moreover, several obligations undertaken under the Convention, such the obligation never to use chemical weapons, to cooperate with the aim of achieving States Parties’ economic and technological development through the exchange of scientific and technological knowledge in the field of chemistry for peaceful purposes, to protect the environment and ensure the safety of people during the handling of chemical substances, certainly reflects the notions of the right to life, economic and social rights, and rights to health and a healthy environment. From this perspective, the benefits of the Convention are not restricted to States Parties thereto; individuals also indirectly benefit from compliance with the provisions of the CWC, as States Parties manage to ensure and enhance their compliance with international human rights instrument through their fulfillment of their obligations under the Convention. In conclusion, the Chemical Weapons Convention may be considered to contribute to the promotion and respect of human rights.