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This is a research proposal of my LLB dissertation on a topic on Chemical Weapons. I hope you like it and feel free to comment, critic, reply to, correct and contact me.

This is a research proposal of my LLB dissertation on a topic on Chemical Weapons. I hope you like it and feel free to comment, critic, reply to, correct and contact me.

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    Chemical weapons research proposal Chemical weapons research proposal Document Transcript

    • UNIVERSITY OF NAIROBI SCHOOL OF LAW LLB IV. KEVIN NGOYA MURAKA G34/30811/2010 RESEARCH PROPOSAL CHEMICAL WEAPONS; INTERROGATTING THE EFFECTIVENESS OF EXISTING GLOBAL INSTITUTIONAL AND LEGAL FRAMEWORKS IN PREVENTING CHEMICAL WARFARE. SUPERVISOR: NISHIT MARU
    • 1.0 BACKGROUND Wars have been there with humankind since as far as history can go. They have been as a result of disputes, a way of solving disputes and even as a way of generating more disputes and driving them to a whole new level. Such disputes vary in terms of their magnitudes, duration, and effects thereafter of the wars all of which is mostly influenced by the parties involved. Whether the parties involved in such a dispute which leads to war are two opposing groups within a state or two different states going against each other, the sole aim of each side is always to gain an advantage in the war that would enable them to win the war as efficiently as possible with as minimal casualties on their side as possible; this is usually the factor that determines the kind of weapons that the side uses in such a war. A side would hence go for weapons that would ensure their effective winning of the war with as much minimal negative on its side as possible, this, though it is a legitimate approach that any rational side in a war would be expected to do leads to s struggle to acquire and use weapons that have adverse far reaching consequences beyond what they were intended to achieve and by far the war itself. The use of this weapons which are indiscriminate in nature has caused a lot of unimaginable pain and suffering to populations where such weapons have been employed. This weapons that are indiscriminate in nature usually called Weapons of Mass Destruction (WMDs) are prohibited by numerous conventions that deal with the Law of Armed Conflict this is where International Humanitarian Law comes in to regulate and/or prohibit the use of such weapons through its core principles of Distinction, Proportionality, Military Objective and Necessity. "Weapons of Mass Destruction" is a term that is generally used to denote nuclear, chemical, and biological weapons, sometimes the little know radiological weapons are occasionally included in this vast field. They are a chemical, biological or radioactive weapon capable of causing
    • widespread death and destruction1 . The perceived threat of WMDs has influenced policies, rules and regulations of countries around the world2 . Contemporary international legal analysis generally follows this conventional definition of WMD, even though neither treaty law nor customary international law contains an authoritative definition of WMD. The reason such a definition does not exist is that states have historically used international law to address each category of weapons within the WMD rubric. International law specifically on WMD is, thus, composed of three different sets of rules for each WMD technology. General rules of international law, such as international humanitarian law, also apply to WMD; but these general principles were not developed specifically to address WMD3 . This rule has further been made to be a norm of customary international law that applies in both International and Non-international Armed conflicts. These weapons defeat the main principles of IHL especially the principle of Distinction as they cannot be directed at a specific military target or object only plus their effects are such that they cannot be limited and/or prevented as required by International Humanitarian Law. This research will focus on Chemical Weapons; something that has been a sensitive issue for a very long time and shows little signs of becoming ever less controversial and sensitive especially now with the new case of Syria. Chemical warfare has been given several definitions but they all drive at the same meaning. Its defined as warfare and associated military operations involving the employment of lethal and incapacitating munitions and agents, typically poisons, contaminants, and irritant4 . (Military) warfare in which chemicals other than explosives are used as weapons, especially warfare using asphyxiating or nerve gases, poisons, defoliants, etc5 . 1 Definition of weapon of mass destruction in English <http://www.oxforddictionaries.com/us/definition/american_english/weapon-of-mass- destruction> (Accessed on 5th October 2013) 2 The National Security Strategy of the United States of America (Sept. 2002), <http://www.whitehouse.gov/nsc/nss.html and National Strategy for Homeland Security (July 2002), http://www.whitehouse.gov/homeland/book/index.html> accessed on 12th October 2013 3 Advisory Opinion, Legality of the Use of Force by a State of Nuclear Weapons in Armed Conflict, ICJ Reports 66 (1996), <http://www.icj- cij.org/icjwww/icases/iunan/iunanframe.htm> (accessed on 5th October 2013) 4 The American Heritage Dictionary of the English Language, Fourth Edition, Houghton Mifflin Company. (2000) 5 Collins English Dictionary – Complete and Unabridged, HarperCollins Publishers, (2003)
    • The questions that begs an answer in discussing about Chemical Weapons is, why the special focus and attention to chemical weapons? There have been numerous and diverse weapons and technologies developed and approved in warfare but a certain level of stigma has always attached where chemical weapons are involved6 . 1.1 STATEMENT OF THE PROBLEM The use of weapons is regulated by a range of bodies of international law. Arms control, disarmament law, international humanitarian law, international human rights law, international criminal justice standards, in particular the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and rules governing the use of force, including jus ad bellum, all govern certain weapons or aspects of their use. Some weapons are used widely within or outside armed conflict, such as firearms or explosive weapons fired from unmanned aerial vehicles (“drones”). They thus cut across rules governing law enforcement and jus in Bello. Other weapons, such as anti-personnel mines and cluster munitions, are outlawed at all times, including peacetime, at least for States Parties to the relevant treaties7 . Generally it can be said that there has been a reluctance of states and groups to resort to chemical weapons even as a weapon of last resort. The taboo against the use of chemical weapons arises, in large part, from the shocking scale on which they can kill and the insidious and indiscriminate way they spread. But it also stems from the infrequency of their use. Because the ban on their deployment has mostly been observed, political leaders are, by and large, even less willing to flout it, thus reinforcing the taboo8 . Despite the above noted reluctance, it is undeniable that Chemical Weapons have been used in the past and with horrific effects they bore; from World War where The Kaiser's Germany pioneered the tactic at the second Battle of Ypres in 1915, Chlorine gas was sent over the Allied 6 Richard Price. The chemical weapons taboo. Ithaca: Cornell University Press. (1997) 7 http://www.geneva-academy.ch/policy-studies/ongoing/weapons-law 8 Why is the use of chemical weapons taboo? < http://www.economist.com/blogs/economist-explains/2013/09/economist-explains-4> (accessed on 7th may 2013)
    • trenches, around 6,000 combatants were killed, the Allied side also retaliated with the same tactic, in the end ended up using chemical weapons, including Mustard Gas and Phosgene, with around 90,000 more men dying agonizing deaths from asphyxiation and chemical burns. The Geneva Protocol9 was then negotiated and adopted. The protocol forbids its signatories to use asphyxiating gas on one another, however the protocol did not explicitly ban its use against a non-party although, at the same time, demands its members‟ consent that the prohibition on asphyxiating gases be universally binding. Unfortunately, just like other disarmament treatise of the time, the protocol contains no mention of how its provisions might be enforced. The recent case where the UN and the OPCW confirmed use of chemical weapons in Syria proved to be a reality check to the much hyped Chemical Weapons Convention. When reports started to circulate that chemical weapons were present in Syria that any of the parties at war could use it, the OPCW gave the following statement, “In regard to reports in the media concerning the possible use of chemical weapons in the Syrian conflict, the Director- General of the OPCW, Ambassador Ahmet Üzümcü, has issued the following statement: “The OPCW echoes the view of UN Secretary General Ban Ki-moon that it would be „reprehensible‟ if anybody was contemplating the use of weapons of mass destruction, like chemical weapons, in Syria. The prohibition on the use of chemical weapons is established in international law and, if stockpiles of chemical weapons exist and there is the possibility they may be deployed, this is a matter of grave concern to the international community as a whole. The Chemical Weapons Convention prohibits the development, production, stockpiling or use of these weapons and today has 188 States Parties. As we stated in our press release of 18 July, the OPCW is following media reports and other published information on Syria and will continue to monitor developments there closely.”10 However, chemical weapons were used despite the strong warning and even much more the presence of a prohibiting treaty on the same. Complete and permanent disarmament of states of chemical weapons once seen as a goal achieved by the CWC was now a subject of questions. 9 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare 10 OPCW Statement on Alleged Chemical Weapons in Syria < (http://www.opcw.org/special-sections/the-opcw-and-syria/statements-and-press- releases/opcw-statement-on-alleged-chemical-weapons-in-syria/> (accessed on 15th October 2013)
    • The global scale of international cooperation required achieving complete disarmament and the obligation imposed by the CWC to non state parties to the treaty was now a matter of debate. 1.2 JUSTIFICATION OF THE STUDY Until recently, the Chemical Weapons Convention had been hailed as one of the most successful disarmament treaties, a landmark disarmament and nonproliferation treaty that stipulate the total elimination of an entire category of weapons of mass destruction. It has been said to be the unique among disarmament treaties in that it outlawed a class of weapons, institutionalized a comprehensive verification regime, established its own organization responsible for the implementation of the provisions of the treaty, and placed its own restrictions on the export of dual use technology. However while the body of the treaty was deemed complete and effective towards achieving the main objective of the convention, the treaty itself remained largely untested on what it was meant to prohibit. On the 16th of September 2013, United Nations team probing the possible use of chemical weapons in Syria reported that it had found “clear and convincing evidence” that Sarin gas was used in an incident that occurred on 21 August in the Ghouta area on the outskirts of Damascus in which hundreds of people were reportedly killed. The team, led by Swedish scientist Dr. Åke Sellström, also concluded in particular that the environmental, chemical and medical samples collected provided “clear and convincing evidence that surface-to-surface rockets containing the nerve agent Sarin were used in Ein Tarma, Moadamiyah, and Zamalka, in the Ghouta area of Damascus.”11 From the above, we can sadly say that chemical weapons have been used more than twenty years after the formulation of a so-called perfect treaty to prevent the same from happening. 11 Ibid 2
    • This research seeks to identify whether the CWC has achieved to make the global ban of Chemical Weapons an unquestionable norm of international law, whether in the light of the recent events in Syria a chemical free world can be realized considering the challenges the CWC and OPCW face and if the CWC whose effectiveness has been considered perfect for a long time can now be doubted and its effectiveness questioned. 1.2 HYPOTHESIS. This study is based on the following hypothesis;  That there is lack of effective legal provisions, laws and conventions to carter for the use and non use of chemical weapons in the world.  That there is lack of effective abd adequate legal machinery and enforcement mechanism to oversee and facilitate provisions of the existing laws, conventions and treaties on Chemical Weapons.  That the lack of adequate and effective enforcement machinery favors the use of chemical weapons today.  That lack of effective and precise legal provisions and conventions furthers the use and lack of deterrence in use of Chemical Weapons.  That the non use of chemical weapons mostly depends on the willingness to co-operate because much of the issues are political in nature.  That there is lack of mechanisms to ensure that the prescribed chemical weapons are not developed and used and that it depends on the willingness of states to develop and use or not to develop and use Chemical Weapons. 1.4 RESEARCH QUESTIONS. This research will seek to tackle some questions whose answers will highlight a clear position at which the international community stands as far as an issue of huge significance and far reaching consequences like Chemical weapons is concerned. It will give more specific focus on such
    • significant issues as the Chemical Weapons Convention, the OPCW and other protocols that regulate the chemical weapons. Such questions will be;  When have chemical weapons been used both preceding and after the conventions and protocols to regulate them and are r there effective legal provisions, laws, conventions and treaties to carter for the use and non use of chemical weapons?  Why chemical weapons are considered such an egregious mode of warfare the lack of effective and are there precise legal provisions, treaties and conventions further the use and lack of deterrence in use Chemical Weapons?  To what extends have states gone to observe chemical weapons bans and how do they responded to chemical weapons ban violations and  What are the challenges and emerging issues that face Chemical Weapons Convention and the OPCW in its quest to eliminate chemical weapons permanently and does the lack of mechanisms to ensure that lack of prescribed chemical weapons are not developed and that it depends on the willingness of states to develop or stop developing chemical weapons?  What has been the major contributing factor behind a resistance to use chemical weapons if at all there has been any does the non use of chemical weapons mostly depend on the willingness of states to co-operate because much of the issues involved are political?  Whether there is a legitimate threat of an outbreak of chemical use in battles in the light of the recent happenings in Syria? 1.5 OBJECTIVES OF THE STUDY To assess whether there is effective legal provisions, laws, conventions and treaties to carter for the use and non use of chemical weapons. To assess whether the lack of effective and precise legal provisions, treaties and conventions further the use and lack of deterrence in use Chemical Weapons. To establish whether the non use of chemical weapons mostly depends on the willingness of states to co-operate because much of the issues involved are political.
    • To determine whether there is lack of effective and adequate legal enforcement mechanism to oversee and facilitate provisions of the treaties and Conventions regulating Chemical Weapons.. To assess whether the lack of precise and effective legal enforcement machinery for the conventions and treaties favors continued use of chemical Weapons. To assess whether there is lack of mechanisms to ensure that lack of prescribed chemical weapons are not developed and that it depends on the willingness of states to develop or stop developing chemical weapons. The study will also examine the newest case of Syria and examine how it has brought into perspective the application of the Chemical Weapons Convention to non-members state and to what extend the OPCW can go in application of its mandate under the Convention where such cases happen. 1.6 RESEARCH METHODOLOGY. The research shall be mainly desktop and textbook research. The research shall encompass the descriptive approach as well as the analytical approach towards the various materials and sources available. Analysis will be given to materials like existing documents, data, published journals and Articles, text books most of which will be online materials which will include official articles of the Organization for the Prohibition of Chemical Weapons, United Nations Office for Disarmament Affairs The research will analyze the provisions of the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, the 1925 GENEVA Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare 1.7 THEORETICAL FRAMEWORK. This study is based on a couple of different theories and principles that can be applied to the issue of Weapons of Mass destruction and the specific issue of Chemical Weapons. Such principles and theories will include the principle of pacta sunt servanda established by Article 26
    • of the Vienna Convention on the Law of Treaties12 which provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith. Another theory that shall be explored in this text is the theory of incorporation which holds that customary international rules are part and parcel of the domestic laws of a state. This is an old theory that dates as far back as the 18th century where controversy and disagreements about the extent of diplomatic immunity were beginning to arise. Here in the case of Buvot v Barbuit, Talbot LJ stated that “the law of nations in its full extent was part of the Law of England13 . The theory of transformation is another theory that shall be taken into context in this study. It argues that the rules of customary international law only form part of a state‟s law if they have been specifically adopted either by legislation or case law. This is a position that courts in England seemed to shift to from the above theory of incorporation as it was evidenced in the case of R v Keyn14 . A German ship collided with and sank a British vessel in the English Channel within three miles of the English coast. The German captain was indicted for manslaughter following the death of a passenger from the British ship, and the question before the Court for Crown Cases Reserved was whether English Court did indeed have jurisdiction to try the offence in such circumstances. It was held that no British legislation existed which provided for jurisdiction over the three mile territorial sea around the coasts even though such a rule might have been said to exist in international law. The German captain was released. The court in West Rand Gold Mining Co15 . Case attempted to establish a distinction of the two theories. Lord Alverstone declared that whatever had received the common consent of civilized nations must also have received the assent of Great Britain and as such could be applied by the municipal tribunals. He however went on to modify the impact of this by noting that any proposed rule on international law would have to be proved by satisfactory evidence to have been “recognized and acted upon by our own country” or else be of such a nature that it could hardly be supposed any civilized state would repudiate it16 . This modified incorporation doctrine was clearly defined by Lord Atkin in the case of Chung Chi Cheung v R17 where he noted that: 12 1969 13 (1737) Cases t. Talbot 281 14 (1876) 2 Ex. D.63 15 (1905) 2 KB 391 16 Shaw (n 18) 105 17 (1939) AC 160
    • [I]international law has no validity except in so far as its principles are accepted and adopted by our own domestic law… The courts acknowledge the existence of a body of rules which nations accept among themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. New War Theory by Mary Kaldor is another theory that is significant here. The theory argues that contemporary types of warfare are distinct from the classic modern forms of warfare based on nation-states. New wars are part of a globalised war economy underpinned by transnational ethnicities, globalised arms markets and internationalized Western-global interventions. The new type of warfare is a predatory social condition which damages the economies of neighboring regions as well as the zone of conflict itself, spreading refugees, identity-based politics and illegal trade. It is also characterized by new forms of violence (the systematic murder of „others‟, forced population expulsion and rendering areas uninhabitable) carried out by new militaries (the decaying remnants of state armies, paramilitary groups, self-defense units, mercenaries and international troops) funded by remittances, diaspora fund-raising, external government assistance and the diversion of international humanitarian aid. Whereas 80 per cent of war victims early last century were military personnel, it is estimated that 80 per cent of victims in contemporary wars are civilians. According to Kaldor, this new form of warfare is a political rather than a military challenge, involving the breakdown of legitimacy and the need for a new cosmopolitan politics to reconstruct affected communities and societies. 18 Further, the Realist Theory of Deterrence will be explored in this study too. In foreign affairs, deterrence is a strategy intended to dissuade an adversary from undertaking an action not yet started, or to prevent them from doing something that another state desires. Deterrence theory gained increased prominence as a military strategy during the Cold War with regard to the use of nuclear weapons. It took on a unique connotation during this time as an inferior nuclear force, by virtue of its extreme destructive power, could deter a more powerful adversary, provided that 18 Kaldor Mary, New and Old Wars: Organized Violence in a Global Era. Polity, Cambridge (1999.)
    • this force could be protected against destruction by a surprise attack. A credible nuclear deterrent, Bernard Brodie wrote in 1959, must be always at the ready, yet never used19 . In Thomas Schelling‟s (1966) classic work on deterrence, the concept that military strategy can no longer be defined as the science of military victory is presented. Instead, it is argued that military strategy was now equally, if not more, the art of coercion, of intimidation and deterrence20 . Schelling says the capacity to hurt another state is now used as a motivating factor for other states to avoid it and influence another state's behavior. In order to be coercive or deter another state, violence has to be anticipated and avoidable by accommodation. It can therefore be summarized that the use of the power to hurt as bargaining power is the foundation of deterrence theory, and is most successful when it is held in reserve.[2] In 2004 Frank C. Zagrare made the case that deterrence theory is logically inconsistent, not empirically accurate and deficient as a theory. In place of classical deterrence, rational choice scholars have argued for "perfect deterrence," which assumes that states may vary in their internal characteristics and especially in the credibility of their threats of retaliation21 . 1.8 LITERATURE REVIEW Hugh D. Crone in his book Banning Chemical Weapons; The Scientific Background22 argues that the problem of chemical warfare had not been an issue of major popular concern of the late 20th century but yet had matters that relate to or impinge on, matters that have occupied public debate23 . He argues that much weight has been given to the effects of chemical warfare on the environment, contamination of foodstuffs and other secondary issues rather than the possibility of such an outbreak of chemical warfare in the first instance. At the time he was writing the book, the CWC was yet to be successfully negotiated and he held reservations on whether there could be negotiated one that would totally successfully ban and eliminate chemical weapons. He was of the view that the large input required to negotiate a 19 Brodie Bernard "The Anatomy of Deterrence" as found in Strategy in the Missile Age, Princeton, (1959) Volume issue "8.” 20 Schelling, T. C. (1966), "2", The Diplomacy of Violence, New Haven: Yale University Press, pp. 1–34 21 Zagare, Frank, Reconciling Rationality with Deterrence: A Re-examination of the Logical Foundations of Deterrence Theory", Journal of Theoretical Politics 16 (2): 107–141. (2004) 22 Publisher: Cambridge University Press (October 30, 1992) 23 Hugh D. Crone, Banning Chemical Weapons: The Scientific Background Cambridge University Press (1992)
    • disarmament treaty of such vast significance would frustrate efforts. He was of the view that the lengthy efforts required right form the politicians to mke the broad decisions regarding the disarmament convention to the diplomats negotiating provisions that are acceptable to parties involved with the advice of scientists and the military on possible scenerios to commissioning lawyers to draft the requisite clauses to legally meaningful terms. In the last days of World War II, Adolf Hitler, consumed with rage at the prospect of defeat, issued orders for a "scorched earth" policy that would have turned Germany into a virtual wasteland. German power plants, the transportation system, industrial facilities, and all the other infrastructure necessary to a modern society were to be systematically destroyed in order to deny their use to the Allies. Despite this demand for Armageddon (which, fortunately, was stymied by the actions of German armaments minister Albert Speer, among others), the Führer never ordered the use of the one measure that might, even at that late date, have at least temporarily forestalled defeat: chemical weapons24 . The Chemical Weapons Taboo25 is an attempt to explain such an anomaly, as well as the general reluctance with which other states have contemplated the use of chemical weapons, even in the midst of total wars that featured all sorts of other dreadful devices, including the mass destruction of cities by aerial bombing. As author Richard Price writes, his essay is "a meditation on the relationship between morality and technology, particularly the exercise and restraint of violence in world politics. To this end it explores the development and operation of the norm in international society which proscribes the use of chemical weapons" (p. ix). Various explanations have been offered for the general non-use of chemical weapons in battle, at least since World War I. These include the doubtful utility of such weapons, given the vagaries of weather and of other factors, fears of retaliation should one side initiate the use of chemical warfare, and, finally, an instinctive revulsion toward employing a technology that seems peculiarly horrible and insidious in its effects, a type of poison, any variety of which has long been considered dishonourable in the conduct of war. Interestingly, one reason commonly given for Hitler's not ordering the use of chemical weapons was that he himself had been the victim of a gas attack in World War I and indeed suffered temporary blindness as a result. [End Page 194] 24 Steven L. Hoenig, Handbook of chemical warfare and terrorism. Westport, Conn: Greenwood Press (2002) . 25 The Chemical Weapons Taboo. By Richard M. Price. Ithaca, N.Y.: Cornell University Press, 1997
    • Price gives some credit to these factors, but also finds them insufficient in explaining the seemingly deep-rooted opposition to the use of chemical weapons in wartime. He employs a "constructivist methodology" to suggest that the norm against such weapons is actually a result of an extended "discourse" in which often-conflicting values, considerations of self-interest, accidents of personality and politics, and a host of other variables informing the social dialogue on the uses of technology eventually led to a general acceptance of this particular norm. His basic argument therefore is that the taboo against chemical weapons cannot just be explained in normative or rationalist terms, but rather represents a complex interaction over time that involved a number of other factors. He is particularly instructive in tracing how these factors have led to various international agreements curbing or even totally excluding the use of chemical warfare, including The Hague Peace Conferences of 1899 and 1907, the Geneva Protocol of 1925, and, most important, the Chemical Weapons Convention of 1993 (which has been signed by 160 countries)26 . 1.9 PROPOSED CHAPTER BREAKDOWN Chapter One: Introduction This chapter is an introduction of the entire study and gives its scope. It‟s the abstract of the study and it gives a general outline of what will be covered by the research. Chapter Two: This chapter considers the historical aspects of the development of the law of Weapons of Mass Destruction with a specific interest on Chemical Weapons. It interrogates how it has been dealt with internationally and how the international community responds to the threat of chemical warfare. It will also establish what lay the foundation to treat Chemical Weapons as an international threat, problem and cause for concern; it will also consider the measures that have been put in place to tackle this menace. 26 Dr. Stephen A. Garrett professor of international policy studies at the Monterey Institute of International Studies
    • Chapter Three: This chapter will be more specific on dealing with individual treaties and conventions that were developed to govern Chemical Weapons and Chemical Warfare. It will seek to highlight the different challenges that face the CWC, OPCW, their shortcomings, limitations and achievements with consideration to the Geneva Protocol and other similar treaties and conventions. Chapter Four: This chapter will consider the presence of the threat of chemical warfare today and the challenges posed by states not signatory to the treaty and other groups not recognized in the treaty as states and therefore outside the jurisdiction of the treaty and the role of international customary law in addressing such challenges. Attributes of chemical weapons too. Chapter Five: This chapter will highlight the conclusion of the study and suggest recommendations in aligning the existing international legislations and regulations on chemical weapons and against their use under international law if there be deficiencies.