Nonproliferation
Policy Paper

Missing: Legal Frameworks for Chemical Security

Evidence suggests that national legal frameworks for chemical security, as required for all UN Member States under UNSCR 1540, remain persistently underdeveloped

  • December 15, 2020
  • 2:21 pm

In recent years, state and non-state actors have broken the taboo against the use of chemical weapons. Yet evidence suggests that the national legal frameworks for chemical security, as required of all UN member states by United Nations Security Council Resolution 1540 (2004), remain persistently underdeveloped. Worse, the international community has yet to generate a widely accepted set of international standards for chemical security. To provide a baseline on national implementation of the chemical security obligations under Resolution 1540, the authors led a research team that first identified key practices for chemical security laws and regulations from a review of more than 30 national, regional, and industry codes of conduct and guidance. They then extracted more than 600 laws and regulations identified by the 1540 Committee for analysis. After comparing these measures against key practices derived from the codes and guidance, the authors generated a composite index score for each UN member state and created a choropleth map to provide new insights into the status of 1540 implementation, from geographic clusters to unexpected outliers. Finally, they offer several potential determinants for further research.

In the aftermath of the widespread use of chemical weapons during the First World War, many countries committed to not use such weapons again in the 1925 Geneva Protocol.1United Nations, Office of Disarmament Affairs, Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, signed at Geneva, 17 June 1925, https://www.un.org/. In the following decades, despite their use by a few governments and non-state actors against domestic and foreign targets, a strong international norm against chemical weapons emerged.2Richard M. Price, The Chemical Weapons Taboo (Ithaca: Cornell University Press, 1997); and Jonathan B. Tucker, War of Nerves: Chemical Warfare from World War I to Al-Qaeda (New York: Pantheon, 2006). With the end of the Cold War, the international community further formalized this norm into a robust regime against chemical weapons by establishing the 1993 Chemical Weapons Convention (CWC), which now has 193 state parties and created the Organisation for the Prohibition of Chemical Weapons (OPCW). More recently, however, state and non-state actors’ use of chemical weapons threatens to under-

mine the chemical weapons nonproliferation regime at its foundation. The chemical weapons attacks during the Syrian civil war brought opportuni- ties for international cooperation, resulting in Syria acceding to the CWC and destroying much of its chemical warfare agents. At the same time, the attacks brought moments of division, such as grappling with the Syrian government’s role in continued attacks and a contested Security Council vote on the OCPW’s responsibility to determine attribution.

Furthermore, perpetrators of chemical weapon attacks are employing new agents and tactics, from sophisticated chemical weapons for assassinations in Malaysia and the United Kingdom to attacks, virtual and physical, on chemical facilities.3“OPCW Executive Council Condemns Chemical Weapons Use in Fatal Incident in Malay- sia,” Organisation for the Prohibition of Chemical Weapons, 10 March 2017, https://www.opcw.org/. See also David Bond, “Third Russian GRU Agent Linked with Novichok Attack on Skri- pals,” Financial Times, 14 February 2019, https://www.ft.com/. The use of novel agents in these most re- cent attacks have even prompted CWC state parties to add new chemicals, the families of novichocks and carbamates, to the schedules of chemicals controlled under the CWC for the very first time.4Laura Howes, “New Nerve Agents Added to the Chemical Weapons Convention,” Chemical & Engineering News, 2 December 2019, https://cen.acs.org/policy/.

Unfortunately, these challenges to the nonproliferation regime and the norms that underpin it are not isolated or infrequent. Of the 517 events involving chemical, biological, radiological, or nuclear terrorism from 1990 to 2017 in the Profiles of Incidents Involving CBRN and Non-State Actors (POICN) database, more than 400 involve chemical terrorism occurring in at least 59 countries on six continents.5Markus K. Binder and Gary A. Ackerman, “Pick Your POICN: Introducing the Profiles of Incidents Involving CBRN and Non-State Actors (POICN) Database,” Studies in Conflict & Ter- rorism, 2019, https://doi.org/10.1080/1057610X.2019.1577541. Thus, the international community has much more to do to secure and prevent the illicit use of these chemicals.

The global community knows little about how national systems are implemented and enforced, beyond evidence that illicit actors can and have exploited them.6Simon Marks, “Belgian Exporters Found Guilty of Sending Chemicals to Syria,” Politico, 19 April 2019, https://www.politico.eu/. However, with funding from Global Affairs Canada, the Henry L. Stimson Center began a project to explore the national legal frameworks for chemical security in all 193 UN member states with the intention to develop a compendium of laws, regulations, or their equivalent that include specific obligations to secure toxic chemicals of proliferation concern.7The compendium also fulfilled one of the action items of the G7 Global Partnership’s Chemical Security Sub-Working Group to implement its strategic vision. See Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, Chemical Security Sub- Working Group, “Strategic Vision,” accessed October 2020, https://www.gpwmd.com/. The project also sought to identify a set of emerging chemical security standards by reviewing open source literature and then evaluating national legal measures against key elements of those standards. All UN member states are required to have effective legal measures and other controls in place for chemical security under legally binding obligations of United Nations Security Council Resolution (UNSCR) 1540 (2004). However, the OPCW has not yet developed an international code of conduct or guidance on chemical security. Without OPCW guidance, countries determine on their own how they should implement their chemical security obligations. In contrast, the International Atomic Energy Agency (IAEA) has produced a code of conduct and guidance for
nuclear and radiological security.8International Atomic Energy Agency (IAEA), Code of Conduct on the Safety and Security of Radioactive Sources (Austria: IAEA, 2004), https://www-pub.iaea.org/. See also International Atomic Energy Agency (IAEA), Guidance on the Import and Export of Radioactive Sources (Vienna: IAEA, 2012), https://www-pub.iaea.org/. The lack of internationally accepted chemical security standards and practices has contributed to a global dis- array of national systems to secure toxic chemicals, their precursors, and related facilities. This article first identifies key practices and standards of chemical security applicable to UNSCR 1540. It then generates a composite index score to evaluate each UN member state and provides insight into each state’s implementation. Finally, the article recommends areas for more research into compliance with UNSCR 1540.

Read full academic article published byStrategic Studies Quarterly (SSQ) in Winter 2020.

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