16 October 2013

Sharing Risks, Sharing Liability: Environmental and Health Risks of the Destruction of Syrian Chemical Weapons

On 11 October 2013, the UN Security Council authorised the establishment of a Joint Mission of the Organisation for the Prohibition of Chemical Weapons (OPCW) and the United Nations (UN) to oversee the destruction of Syria’s chemical weapons. The Council endorsed the proposal formulated by Ban Ki-moon in a letter to the Council of 7 October (S/2013/591), pursuant to a request by the Security Council in Resolution 2118 (2013).

While all attention now focusses on the completion of the Joint Mission’s goal (the elimination of Syrian chemical weapons), it is not too early to plan for contingencies. The destruction of the chemical weapons will entail significant risks for the environment and human health. These risks will arise in particular in the third phase of the Mission. As outlined in Ban Ki-moon’s letter of 7 October, from 1 November 2013 to 30 June 2014, the Joint Mission is envisaged to support, monitor and verify the destruction of a complex chemical weapons programme involving multiple sites spread over Syria which by then is likely to be still engulfed in violent conflict. This involves approximately 1,000 metric tons of chemical weapons, agents and precursors that are dangerous to handle, transport and to destroy.

Even in normal situations, destruction of chemical weapons is a high-risk undertaking. The OPCW is mindful of environmental and health risks of such destruction, see for instance here. In Syria the risks surely are higher than normal. The time period is shorter than what otherwise would be allowed under the Convention, and the context will be incomparably less secure than any other instance in which chemical weapons have been destroyed. As Ban Ki-moon wrote in his letter of 7 October, ‘During phase III, the OPCW/United Nations Joint Mission will seek to conduct an operation the likes of which, quite simply, has never been tried before.’ He recognised that ‘In the extant circumstances, the pressures associated with the destruction timelines will not only enhance operational and security risks, but also potential public health and environmental risks.’

In this situation, it has to be considered what will be the legal consequences when things do not go according to plan, and harm to human health or the environment results. In particular, who would be liable (a term more appropriate here than responsibility, in view of the fact that major harm could be caused even if no wrongful act may be committed under international law) for such harm?

The Chemical Weapons Convention does not include a provision on liability for harm resulting from the destruction of chemical weapons. But it seems clear that if a state destroys its chemicals weapons and harm to public health or the environment occurs, it is exclusively that state (and not, for instance, the OPCW) that would be confronted with any legal consequences of such harm. Depending on the circumstances, the state may then be responsible towards other state parties (for instance if it failed to set or enforce proper standards as required by the Convention), or towards injured individuals (possibly under human rights law, if no proper precautions were taken). It also may be liable for environmental harm – though it is not obvious that such liability will arise under international law, unless transboundary effects occur.

In the case of Syria, a different outcome seems justified. While much will depend on the circumstances in which harm may occur, it is a compelling proposition that it should not necessarily be only Syria that has to face the legal consequences of such harm.

This proposition can be grounded on the fact that the OPCW Executive Council and the Security Council have pushed Syria (respectively in a decision of the OPCW Executive Council of 27 September, and in Security Council Resolution 2118 which endorses this decision) to engage in the destruction of chemical weapons in a time-frame that is shorter than what is prescribed by the Convention, and that would have to occur in a volatile situation in which no other state would ever think of engaging in such high risk activities.

In the published documents there is nothing to suggest that the OPCW and/or the UN would assume (co-)liability if things would go wrong. The proposal by the UN Secretary-General that is now endorsed by the Security Council maintains that ‘all destruction of chemical weapons facilities, stocks and associated material is the responsibility of the Government of the Syrian Arab Republic. Neither OPCW nor the United Nations is mandated to conduct actual destruction activities’. The suggestion appears to be that, as in normal times of peace, only the state actually carrying out the destruction will be liable if things go wrong.

In view of the role of the OPCW Executive Council and the UN Security Council in the process that Syria is now embarking on, as a general proposition this outcome seems unreasonable. Pushing a state into actions that in all other situations would be considered unsuitable, even if the aim is a noble one, should come with some responsibility if things go wrong.

Such a potential (co-)liability does not obviously flow from existing rules of international law. In the case of environmental harm it may be doubtful whether an obligation binding on the OPCW or the UN can be identified that would allow for a construction of a wrongful act. Moreover, the conditions of the principles on responsibility of international organisations adopted by the International Law Commission, in particular those pertaining to aid or assistance, direction and control, coercion, and circumvention (Articles 14-17) appear to be set too high to be relevant here. In any case they are unhelpful in situations where the problem appears more one of engaging in high-risk activities than of wilful commission of wrongs.

In fact, the proper ground of liability for environmental harm or harm to human health may not so much lie in the law of international responsibility for wrongful acts, but rather in the notion of liability for harm arising out of hazardous activities. The principles that the ILC drafted on this topic only apply to states, and surely there is insufficient practice to warrant the development of similar rules for international organisations. But in particular situations, the principle that an actor that creates a risk of harm by engaging in a hazardous activity should bear (part of) the loss is a sound starting point. Other than with states, for international organisations there is no reason to limit such a principle to transboundary situations. Nor is there any ground to shift liability to private operators. Liability is to be taken by those who contribute significantly to the risk – in this case a combination of Syria, the UN and the OPCW.

While thus neither the principles on responsibility for wrongdoing nor those on liability for creation of risks would easily support a (co)liability of international organisations, the question is whether the UN and the OPCW should profit from gaps in international law, so as to enable them to leaving it to Syria alone to face the consequences of risks that the UN and the OPCW, jointly with Syria, have created. A lesson from the fate of recent liability claims against the UN, for instance in the case of Haiti or Srebrenica, is that it is not necessarily a recommendable strategy for the UN (and the same would hold for the OPCW) to exploit all legal avenues so as to secure that others have to deal with the legal consequences of events in which the UN had a decisive role. While we have to come to accept that for states it is normal to seek gaps in the law to prevent claims, from the UN something more is to be expected.

Three additional points should be noted. First, the question can be asked whether there also may be a potential co-liability of the UN and the OPCW as a result of the acts of the Joint Mission itself. This appears unlikely. While the Joint Mission will play a critical role in guiding and overseeing the destruction, it is not easy to envisage a situation where environmental harm or harm to human health results from the acts of the Joint Mission itself. Theoretically interesting questions about the relationship between the jointness of the mission, and the shared nature of liability between the OPCW and the UN for conduct or omissions of the mission, are unlikely to become practically relevant (though it is not excluded that they arise).

Second, it may be said that the OPCW Council (and the Security Council afterwards) only have rubber stamped what the United States and the Russian Federation had agreed beforehand, and that any liability for high risks should be borne (also) by those states, rather than by the OPCW and the UN alone. As a matter of international law that argument is not an easy one, however. It certainly is not supported by the ILC Articles on the responsibility of international organisations. Again, the standards of the relevant Articles here (Articles 58-61) are high and not really applicable to what in essence is a situation of the creation of risks. It also can be said that the role of the United States and Russia was overtaken by later collective decisions in the Executive Council and the Security Council.

Third, it may be argued that any liability for the UN and the OPCW would not be appropriate should be rejected since it was Syria itself that has created the problem in the first place. The argument that for this reason is would be only for Syria to face the consequences is not compelling, however. The mere possession of chemical weapons by Syria was not a wrong. Its accession to the Convention would normally have given Syria a more flexible time period for destruction, were it not for the intervention by the OPCW Executive Council and the Security Council. The illegality of the use of the gas does not affect any questions of liability for destruction of the weapons.

In conclusion, then, it would seem a sound position that in the event that human health or environmental harm would occur, the UN and the OPCW should not leave all questions of liability to Syria. Given that the rules of international law as laid down in the ILC Articles on the responsibility of international organisations are unlikely to be of much help in construing a shared responsibility in the event that harm would occur, and in view of the absence of established principle on liability of international organisations, the sensible thing to do it to make proper arrangements in advance. One option may be to include this in the tripartite status-of-mission agreement between the UN, the OPCW and the Government of the Syrian Arab Republic, but there will be other options. It is not too late to make arrangements for a shared responsibility in the case of harm that reflects the unique shared nature of this operation.

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