Every life is precious, but some lives are more precious than others; the inequality in application of law brings into question the whole edifice of the international legal framework into question. Two recent incidents bear witness to this. In the first incident, the US along with its allies attacked Syria, on 14th April 2018, for its alleged use of chemical weapons. In the second incident, on 6th September 2018, the United Kingdom took the matter of the use of a chemical agent (Novichok) to the United Nations Security Council (UNSC). Apart from the political and strategic aspects of the two incidents, at the heart of these was the international law related to chemical and biological weapons.
This article will briefly discuss the international law applicable to chemical weapons, and will, then, try to contextualize it with respect to these two incidents.
I. International law and chemical weapons
The international law related to chemical weapons can be summarised in the form of the following points:
The international law related to chemical weapons has interlinkages with the laws which regulate biological, radioactive and nuclear weapons. The master treaty of the Chemical Weapons Convention (CWC), 1993, that affirmed all the earlier legal and customary law about the chemical weapons is a dual-purpose treaty that provides a definition of chemical weapons, which is enumerative in nature and does not prohibit the chemical substances, per se. This definitional problem and dual purpose of the treaty that provides for regulation of chemical substances for research and chemical industry is an issue that affects the whole international legal framework dealing with chemical weapons.
Source of law
The legal basis of the prohibition of chemical weapons has two aspects.
1. First, it is found both in the customary law as well as the treaty law. The customary law has its roots in the state practices related to the prohibition of poisonous gases that were introduced in post-World War-I scenario. From legal point of view, the prohibition was codified in the treaty law through Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 1925 (Protocol, 1925). It may be noted that at that time the Protocol, 1925, was negotiated as an instrument to supervise the international trade in arms and ammunitions. The treaty law was then further fortified by the Additional Protocol I, 1977, and finally by the Chemical Weapons Convention, 1993.
2. Secondly, the law relating to the use of chemicals, bio agents, herbicides, riot-control agents, etc. as weapons has been dealt with by the jus in bello (law in war) category that is known as the International Humanitarian Law (IHL). The law is also called the Hague Law within the domain of the IHL.
II. Factual résumé of recent incidents
Having briefly discussed the international law related to the chemical weapons, it will now be ripe to share factual résumé of the two recent incidents that have brought the discussion on the law to the fore in recent days.
Read More: Nuclear Weapons and Foreign Policy
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