¹ Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, opened for signature Jan. 13, 1993, 1974 UNTS 317. The CWC documents citedin this article are generally available on the website of the Organisation for the Prohibition of Chemical Weapons (OPCW), http://www.opcw.org/.

² Status of Participation in the Chemical Weapons Convention as at 14 October 2013, OPCW Doc. S/1131/2013 (Oct. 14, 2013).

³ Chemical Weapons Convention, supra note 1, Art. I

⁴ Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August2013, paras. 27–28, UN Doc. A/67/997-S/2013/553 (Sept. 16, 2013).

⁵ SC Res. 2118, para. 6 (Sept. 27, 2013).

⁶ OPCW Executive Council Decision, Destruction of Syrian Chemical Weapons, para. 1(c), OPCW Doc. EC-M-33/DEC.1 (Sept. 27, 2013) (incorporated into Security Council Resolution 2118 as Annex I).

⁷ Chemical Weapons Convention, supra note 1, Art. IV, para. 6, provides: “Each State Party shall destroy all chemical weapons.... Such destruction shall begin not later than two years after [the] Convention enters into force for it and shall finish not later than 10 years after entry into force of [the] Convention.”

⁸ According to the Chemical Weapons Convention, supra note 1, Verification Annex, Part IV(A), para. 17, “Category 1” CWs (those on the basis of Schedule 1 chemicals, such as sarin, VX, and mustards) shall be destroyed not later than ten years after the CWC enters into force; “Category 2” CWs (those based of all other chemicals) shall be destroyed not later than five years after the CWC enters into force; and “Category 3” CWs (unfilled munitions and devices) shall be destroyed not later than five years after the CWC enters into force.

⁹ Paragraph 24 provides:

Paragraph 26 provides:

All declared CW possessor states except Albania, Iraq, and Syria requested and were granted extensions of destruction deadlines. See infra note 10 and accompanying text. For Russia, OPCW Doc. C-11/DEC.18 (Dec. 8, 2006), and the United States, OPCW Doc. C-11/DEC.17 (Dec. 8, 2006), the deadline was extended to April 29, 2012; for the Republic of Korea, to December 31, 2008, OPCW Doc. C-11/DEC.12 (Dec. 8, 2006); and India, to April 28, 2009, OPCW Doc. C-11/DEC.16 (Dec.8,2006). These extensions were all granted by separate decisions of the Conference of the States Parties (CSP), as adopted in December 2006. See generally OPCW Doc. C-16/DG.16, para. 2 (Nov. 16, 2011).

For the OPCW’s efforts to eliminate CWs in Libya, see the appendix.

¹⁰ see Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction in 2009, paras. 1–2, OPCW Doc. C-15/4 (Nov. 30, 2010); Letter Dated 27 November 2013 from the Secretary-General Addressed to the President of the Security Council, UN Doc. S/2013/700 (reporting submission of Syria’s initial declaration).

¹¹ Albania, India, and the Republic of Korea completed the destruction of their CW stockpiles by July 2007, March 2009, and July 2008, respectively. OPCW Doc. RC-3/S/1, para. 2.6 (Mar. 12, 2013). India and the Republic of Korea joined the CWC as original states parties (for which the CWC entered into force on April 29, 1997). Each is estimated to have declared about two thousand tons of CWs. Paul F. Walker, Abolishing Chemical Weapons: Progress, Challenges, and Opportunities, Arms Control Today, Nov. 2010, at 25, 27.

¹² Albania, which joined the CWC in 1994, came to acknowledge in 2003 its possession of sixteen tons of CWs (mostly under Category 1). In accordance with the CWC, its destruction deadline was set for April 29, 2007. Two days before the deadline, Albania formally notified the Executive Council that it would be unable to complete the task on time, but it never submitted a formal request for extension. Thus, it technically violated its destruction obligation under the CWC. It is said that the reason for the delay was that its high-temperature incinerator “burned out.” Martin Matishak,One Year to U.S., Russian Chemical Weapons Disposal Deadline, Global Security News-wire (Apr. 29, 2011), at http://www.nti.org/gsn/article/one-year-to-us-russian-chemical-weapons-disposal-dead line/. This case can potentially be understood as involving a force majeure.

¹³ see Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction in 2012, para. 1.7, OPCW Doc. C-18/4 (Dec. 4, 2013).

¹⁴ According to the Chemical Weapons Convention, supra note 1, Verification Annex, Part IV(A), para. 24, a request to extend the deadline for completing the destruction of chemical weapons must be made not later than nine years after the CWC entered into force—that is, by April 29, 2006.

¹⁵ Iraq declared possession of an unspecified quantity of CWs, entombed in two large underground bunkers at Muthanna that had been bombed by U.S. and other coalition forces during the 1991 Gulf war. Walker, supra note 11, at 25; Koplow, David A., Train Wreck: The U.S. Violation of the Chemical Weapons Convention, 6 J Nat’l Security L. & Pol’y 319, 350 (2013)Google Scholar.

¹⁶ OPCW Doc. C-16/CRP.1, para. 1.7 (July 13, 2011). The Iraqi case might also be seen as an application of a noncompliance procedure of the sort discussed later in this article. Legally, however, Iraq is covered by the special rules applicable to states that join the CWC ten years or more after its entry into force, by virtue of which Iraq is not noncompliant. see Chemical Weapons Convention, supra note 1, Art. IV, para. 8.

¹⁷ Framework for Elimination of Syrian Chemical Weapons (Sept. 14, 2013), OPCW Doc. EC-M-33/NAT.1, annex (Sept. 17, 2013).

¹⁸ Destruction of Syrian Chemical Weapons, supra note 6.

¹⁹ When the Executive Council adopted the decision on September 27,2013, the CWC was not in force for Syria, asit deposited its instrument of accession to the CWC on September 14, 2013, with the consequence that the CWC entered into force for it on October 14, 2013.

²⁰ SC Res. 2118, supra note 5, pmbl., para. 5.

²¹ Libya, which had acceded to the CWC in January 2004, declared its possession of approximately 1400 tons of CWs (mostly under Category 2). By February 2011, when its destruction operations were halted due to the break down of a heating unit in a disposal station, Libya had destroyed about 13 tons (51 percent) of Category 1 CWs and 556 tons (40 percent) of Category 2 CWs. OPCW Doc. C-18/CRP.1, para. 1.9 (July 19, 2013). Due to the UN sanctions imposed on Libya which prevented importation of components for the disposal facilities, as well as the civil war that broke out in the country in that year, Libya was unable to complete the destruction of its CWs by April 29, 2012. Security Council Resolution 2009, paras. 4, 15, 13(a) (Sept. 16, 2011), not only virtually recognized the National Transitional Council as Libya’s legitimate government but also partially lifted UN sanctions—which was to enable Libya to resume CW destruction operations. Xiaodong Liang, OPCW Chief Eyes Libyan Chemical Stocks, Arms Control Today, Oct. 2011, at 30; Martin Matishak, Chemical Weapons Monitor Confident on Security of Libyan Stockpile, Global Security Newswire (Aug. 26, 2011), at http://www.nti.org/gsn/. Libya actually resumed destruction of CWs in April 2013. OPCW Doc. EC-72/NAT.2, para. 3.3 (Apr. 24, 2013). International Law rules concerning circumstances precluding wrongfulness—in particular, force majeure—may be relevant, depending on the precise facts in the case.

²² Russia declared its possession of approximately 40,000 tons of CWs (almost all under Category 1). At the end of 2010 and 2011, it had destroyed nearly 20,000 tons (49 percent) and 24,000 tons (60 percent), respectively, of its declared CWs. OPCW Doc. C-16/CRP.1,supra note 16, para. 1.9; OPCW Doc. C-17/CRP.1, para.1.11(July 11, 2012).

²³ The United States declared its possession of approximately 28,000 tons of CWs (almost all under Category 1). At the end of 2010 and 2011, it had already destroyed about 23,000 tons (83 percent) and 25,000 tons (90 percent), respectively, of its declared CWs. OPCW Doc. C-16/CRP.1, supra note 16, para. 1.10; OPCW Doc. C-17/CRP.1, supra note 22, para. 1.12.

²⁴ For a comprehensive account of noncompliance-related provisions of the CWC, see Rosas, Allan, Reactions to Non-compliance with the Chemical Weapons Convention, in The New Chemical Weapons Convention: Implementation and Prospects 415 (Bothe, Michael, Ronzitti, Natalino & Rosas, Allan eds., 1998)Google Scholar. See also Myjer, Eric, Non-compliance Procedures and Their Function in International Law: The Case of the Chemical Weapons Convention, in Contemporary International Law Issues:New Forms, New Applications 355(Heere, Wybo P. ed., 1998)Google Scholar.

²⁵ In terms of destruction, the CWC distinguishes three different types of CWs: stockpiled CWs, abandoned CWs, and old CWs. The last category of CWs, which are dealt with under the Verification Annex, Part IV(B), is further divided into two subcategories: CWs produced before 1925 and those produced between 1925 and 1946 “that have deteriorated to such extent that they can no longer be used as chemical weapons.” Chemical Weapons Convention, supra note 1, Art. II, para. 5. Old CWs in the former subcategory are treated as “toxic waste,” and the state party concerned is obligated to inform the OPCW of the steps being taken to destroy or otherwise dispose of such old CWs in accordance with its national legislation. Id., Verification Annex, Part IV(B), para. 6. Old CWs in the latter subcategory are to be destroyed as CWs, albeit with the potential of being subject to a relaxed time limit and order of destruction.Id., Part IV(B), para. 7.Furthermore, special rules apply to abandoned CWs that also meet the definition of the latter subcategory of old CWs. Id., para. 17.

²⁶ Article VIII, paragraph 23, specifies that the forty-one members of the Executive Council are made up as follows: nine members from Africa; nine from Asia; five from Eastern Europe; seven from Latin America and the Caribbean; ten from Western European and other states; and one rotating member from Asia and Latin America and the Caribbean.

²⁷ It is envisaged in the CWC that the Executive Council’s action may be prompted by the Technical Secretariat of the OPCW:

Id., Article VIII, para. 40.

²⁸ In an early draft of the CWC, what eventually became Article XII regarding the measures to be taken by the CSP was included in Article VIII side by side with Article VIII, paragraph 36, regarding the measures to be taken by the Executive Council. See, e.g., Report of the Ad Hoc Committee on Chemical Weapons to the Conference on Disarmament on Its Work During the Period 8–18 January 1991, CD Doc. CD/1046, AppendixI(Jan.18,1991).

²⁹ Chemical Weapons Convention, supra note 1, Art. VIII, para. 36; id., Art. XII, para. 4.

³⁰ Id., Art. VIII, para. 36.

³¹ Id., Art. XII, para. 2.

³² Id., Art. VIII, para. 36.

³³ Id., Art. VIII, para. 21(k).

³⁴ Id., Art. VIII, para. 36.

³⁵ Id., Art. XII, para. 4.

³⁶ Id., Art. VIII, para. 36.

³⁷ The title of Article XII is “Measures to Redress a Situation and to Ensure Compliance, Including Sanctions.” During the negotiations of the CWC, concern was raised that measures under Article XII might infringe upon the prerogatives of the UN Security Council under Chapter VII of the UN Charter. Walter Krutzsch & Ralf Trapp, A Commentary on the Chemical Weapons Convention 220 (1994).

³⁸ OPCW Doc. C-16/DG.16, supra note 9, para. 24 (Russia); id., para. 33 (United States).

³⁹ OPCW Doc.C-11/DEC.18,supra note 9(Russia); OPCW Doc.C-11/DEC.17,supra note 9(United States).

⁴⁰ Matishak, supra note 12.

⁴¹ Amy F. Woolf, The Nunn-Lugar Cooperative Threat Reduction Programs: Issues for Congress 1 (2003).

⁴² The G-8 leaders committed to raise up to $20 billion over the next ten years to support the project, including the destruction of CWs. Statement by G8 Leaders: The G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction (June 27, 2002), at http://www.g8.utoronto.ca/summit/2002kananaskis/arms.html.

⁴³ Koplow, supra note 15, at 344–46; Walker, supra note 11, at 26.

⁴⁴ Matishak, supra note 12; Pentagon Warns of Extended Chemical Weapons Destruction Time Line, Global Security Newswire (June 22, 2011).

⁴⁵ Koplow, supra note 15, at 335–43; OPCW Doc. C-15/NAT.3, at 3 (Nov. 29, 2010); Walker, supra note 11, at 25.

⁴⁶ OPCW Doc. EC-58/9, para. 5.18 (Oct. 16, 2009).

⁴⁷ See supra note 21.

⁴⁸ OPCW Doc. EC-59/3/Rev.1 (Feb. 26, 2010).

⁴⁹ OPCW Doc. EC-M-31/DEC.3 (Nov. 24, 2011).

⁵⁰ OPCW Doc. C-16/DEC.11, para.3(Dec.1,2011). For the sake of simplicity, the five-point summary below (in the main text) melds elements directly quoted from different paragraphs, as indicated, of the CSP decision.

⁵¹ The expression “possessor States concerned” is perhaps used in order to limit the application of the CSP measures to the three states indicated, and to exclude Iraq from their application for the reasons stated earlier.

⁵² OPCW Doc. C-16/DEC.11, supra note 50, para. 3(a).

⁵³ Id., para. 3(c). The Executive Council session was scheduled to be held immediately after the expiry of the final extended deadline.

⁵⁴ Id., para. 3(d).

⁵⁵ Id., para. 3(f).

⁵⁶ Id., para. 3(h)(i).

⁵⁷ Id., para. 3(f).

⁵⁸ Id., para. 3(h).

⁵⁹ Id., para. 3(j).

⁶⁰ OPCW Doc. C-16/5, para. 9.4 (Dec. 2, 2011).

⁶¹ OPCW Doc. EC-64/5, para. 6 (May 3, 2011).

⁶² The procedure for “change” is relatively simple. After receiving a proposed change, the Executive Council examines the proposal and notifies its recommendation to all states parties. If the Executive Council recommends that the proposal be adopted, it is deemed to be approved if no state party objects to it. If the council recommends that the proposal be rejected, it is deemed to be rejected if no state party objects to the rejection. If a recommendation of the Executive Council does not meet with the required acceptance, the proposal will be considered as a matter of substance by the CSP at its next session. Changes approved under this procedure shall enter into force for all states parties 180 days after the director-general has notified states parties of the approval. Chemical Weapons Convention, supra note 1, Art. XV, para. 5.

⁶³ Id., Art. XV, para. 4.

⁶⁴ Paragraph 4 provides that “[s]ections A and C of the Confidentiality Annex, Part X of the Verification Annex, and those definitions in Part I of the Verification Annex which relate exclusively to challenge inspections, shall not be subject to changes.”

⁶⁵ Chemical Weapons Convention, supra note 1, Art. IV, para. 6.

⁶⁶ Id., Art. XII, para. 1.

⁶⁷ Id. Precisely speaking, however, the measure set forth in Article XII, paragraph 2 (namely, restricting or suspending the state party’s rights and privileges under the CWC), is provided not as an exclusive measure but as an example of measures that can be taken under that paragraph; the provision states that “the Conference [of the States Parties] may, inter alia, upon the recommendation of the Executive Council, restrict or suspend the State Party’s rights and privileges under [the] Convention.” The phrase “inter alia “ suggests that the CSP may also take other measures under this paragraph. It would be wrong to infer, however, that the December 2011 CSP decision was therefore taken under this paragraph. First, any other measures taken under the paragraph should be similar to the measure expressly provided, whereas the measures in the 2011 decision are significantly different. Second, Article XII, paragraph 2, provides that the CSP may take such measures in cases “where a State Party has been requested by the Executive Council to take measures to redress a situation raising problems with regard to its compliance, and where the State Party fails to fulfil the request within the specified time “ (emphasis added), but the Executive Council had made no such request in this case. Third, as noted in the text, the Executive Council itself did not consider the option of applying Article XII to be viable. Incidentally, Krutzschand Trapp, supra note 37, at 222–23, discuss various interpretations based on the understanding that “inter alia “ refers and relates to the phrase “upon the recommendation of the Executive Council.” Yet it seems clear from the sentence itself and its drafting history that “inter alia “ refers and relates to the part “restrict or suspend the State Party’s rights and privileges under [the] Convention.” An earlier draft of the CWC provided that “the Conference of the States Parties may—inter alia,—restrict or suspend the State Party’s rights and privileges under the Convention.” CD Doc. CD/1046, supra note 28, Appendix I. There, the phrase “inter alia “ was used clearly in relation to the measure to be taken by the CSP. See also Rosas, supra note 24, at 439.

⁶⁸ OPCW Doc. EC-64/5, supra note 61, para. 7. It is clear from the chairperson’s report that this second option, under Article XII, was taken to include only the options specified in paragraphs 2, 3, and 4, as described in the text— which do not extend to the measures actually ordered by the CSP in its December 2011 decision. See also supra note 67.

⁶⁹ Paragraph 19 provides that the CSP

⁷⁰ In a conspicuous example invoking a general provision of the CWC to accomplish what is not specifically authorized by the CWC, the CSP endeavored to remove José Mauricio Bustani from his position as director-general of the Technical Secretariat. The relevant decision was taken in accordance with Article VIII, paragraph 19, of the CWC; the second preambular paragraph of the decision

OPCW Doc. C-SS-1/DEC.1 (Apr. 22, 2002). Bustani disputed that decision before the International Labour Organization Administrative Tribunal, which partly upheld Bustani’s claims. The CSP’s decision to remove Bustani was “set aside,” and the OPCW was ordered to pay him material and moral damages. Bustaniv. OPCW, Judgment No. 2232, paras. 15–16 (ILO Admin. Trib. July 16, 2003). Notably, the tribunal’s judgment was based on the fail-ure to provide Bustani with the procedural guarantee of due process, a procedure “enabling the individual concerned to defend his or her case effectively before an independent and impartial body.” Id. The tribunal did not, however, find that the CSP’s decision had been ultra vires. The tribunal recognized that the “Conference does indeed have a broad competence, under Article VIII, paragraphs 19 and 21, of the Convention, to examine all problems lying within the scope of the Convention,” and it also conceded that the “possibility that a measure of the kind taken against the complainant may, exceptionally, be justified in cases of grave misconduct cannot be excluded.” Id.

⁷¹ OPCW Doc. EC-M-31/DEC.3, supra note 49.

⁷² OPCW Doc. C-16/DEC.11, supra note 50, para. 3(a).

⁷³ Id., para. 3(c).

⁷⁴ Human Rights Monitoring: A Field Mission Manual 49–50 (Anette Faye Jacobsen ed., 2008).

⁷⁵ OPCW Doc. C-16/DEC.11, supra note 50, para. 3(d), (f) (emphasis added).

⁷⁶ Id., para. 3(a) (emphasis added).

⁷⁷ Id., pmbl., para. 6 (emphasis added).

⁷⁸ Id.

⁷⁹ Iran stated that

1. –

   – Necessity of recognition of the situation of non-compliance.

2. –

   – Necessity to report the situation of non-compliance to the United Nations organisation due to the threat to international peace and security.

3. –

   – Setting a very limited time-frame for destruction of all remaining stockpiles and avoiding an open-ended time frame.

4. –

   – –Convening a special Conference to review the implementation of the decision.

Explanation of Vote by Iranon the Draft Decision on the Final Extended Deadline of 29 April 2012, at 2, OPCW Doc. C-16/NAT.13 (Dec. 1, 2011). Iran also stated during the general debate of the 2011 session of the CSP that “[i]t is unfortunate that the United States has explicitly stated that it cannot meet the deadline, which is a clear-cut case of non-compliance. As per the Convention, the non-compliance should be brought to the attention of the international community including the United Nations Organisation.” Statement by H. E. Kazem Gharib Abadi, Ambassador and Permanent Representative of the Islamic Republic of Iran to the Organisation for the Prohibition of Chemical Weapons at the Sixteenth Session of the Conference of the States Parties, at 3, OPCW Doc. C-16/NAT.17 (Nov. 28, 2011).

⁸⁰ OPCW Doc. C-16/DEC.11, supra note 50, pmbl., para. 9.

⁸¹ According to Malgosia Fitzmaurice, noncompliance procedures primarily aim at encouraging “a non-complying State to return to compliance without accusing it of wrongdoing, or holding it to account for the consequences that entail from wrongdoing.” Fitzmaurice, Malgosia, The Kyoto Protocol Compliance Regime and Treaty Law, 2004 Sing. Y.B. Int’l L. 23, 25Google Scholar.

⁸² Non-compliance Procedure (1998), paras. 1, 3, 4, in Report of the Tenth Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer, Annex II, UN Doc. UNEP/OzL.Pro.10/9 (Dec. 3, 1998); see also Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, pt. VI, para. 1, in Report of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol on Its First Session, add., pt. 2, Decision 27/CMP.1, annex, UN Doc. FCCC/KP/CMP/2005/8/Add.3 (Mar, 30, 2006); Mechanism for Promoting Implementation and Compliance, para. 9, in Report of the Conference of the Parties to the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Decision VI/12, appendix, UN Doc. UNEP/CHW.6/40, annex (Feb. 10, 2003); Implementation Committee, Its Structure and Functions and Procedures for Review, paras. 4, 5, in Economic Commission for Europe (UN), Executive Body for the Convention on Long-Range Transboundary Air Pollution, Report of the Executive Body on Its Twenty-Fourth Session, add., pt.2, Decision 2006/2, UN Doc. ECE/EB.AIR/89/Add.1 (Feb. 5,2007); Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, paras. 15–18,in Economic Commission for Europe (UN), Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, Report of the First Meeting of the Parties, add., Decision I/7, annex, UN Doc. ECE/MP.PP/2/Add.8 (Apr. 2, 2004).

⁸³ The Implementation Committee took a statement (request for a grace period) by Russia at a Meeting of the Parties in 1994 as constituting a self-trigger submission and, after some exchanges with Russia, reported its recommendations to the next Meeting of the Parties. The measures imposed included implied trade-restriction measures—at a time when Russia was not yet formally found in noncompliance (its deadline for compliance was still a few weeks away). Werksman, Jacob, Compliance and Transition: Russia’s Non-compliance Tests the Ozone Regime, 56 ZaöRV 750, 764–65, 768 (1996)Google Scholar. Noncompliance procedures in other environmental treaties are more explicit in this respect. see Mechanism for Promoting Implementation and Compliance, supra note 82, para. 9(a); Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, supra note 82, pt. IV, para. 6; Implementation Committee, Its Structure and Functions and Procedures for Review, supra note 82, para. 4(b); Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, supra note 82, para. 16.

⁸⁴ Non-compliance Procedure (1998), supra note 82, para. 9.

⁸⁵ [Editor’s note: This qualification is necessary because the protocol itself does not authorize the suspension of the rights and privileges of a state party, whereas the CWC explicitly mentions sucha possibility. Chemical Weapons Convention, supra note 1, Art. XII, para. 2.]

⁸⁶ Indicative List of Measures That Might Be Taken by a Meeting of the Parties in Respect of Non-compliance with the Protocol, in Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances That Deplete the Ozone Layer, Annex V, UN Doc. UNEP/OzL.Pro.4/15 (Nov. 25, 1992); see also Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, supra note 82, pt. XIV, paras. (a)–(d); id., pt. XV, paras. 1, 5; Mechanism for Promoting Implementation and Compliance, supra note 82, paras. 19, 20; Implementation Committee, Its Structure and Functions and Procedures for Review, supra note 82, para. 11; Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, supra note 82, para. 37.

⁸⁷ Loibl, Gerhard, Compliance Procedures and Mechanisms, in Research Handbook on International Environmental Law 434 (Fitzmaurice, Malgosia, Ong, David M. & Merkouris, Panos eds., 2010)Google Scholar; see also Beyerlin, Ulrich, Stoll, Peter-Tobias & Wolfrum, Ruüdiger, Conclusions Drawn from the Conference on Ensuring Compliance with MEAs, in Ensuring Compliance with Multilateral Environmental Agreements: A Dialogue Between Practitioners and Academia 365 (Beyerlin, Ulrich, Stoll, Peter-Tobias & Wolfrum, Ruüdiger eds., 2006)CrossRefGoogle Scholar; Treves, Tullio,Introduction, in Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements 6 (Treves, Tullio, Pineschi, Laura, Tanzi, Attila, Pitea, Cesare, Ragni, Chiara & Jacur, Francesca Romanin eds., 2009)CrossRefGoogle Scholar.

⁸⁸ Most prominently, such has been the practice under the noncompliance procedure of the Montreal Protocol. Fitzmaurice, M. A. & Redgwell, C., Environmental Non-compliance Procedures and International Law, 2000 Neth. Y.B. Int’l L. 35, 51Google Scholar. One of the few exceptions involved Russia’s noncompliance with the London Amendment of the Montreal Protocol, where the measures taken in response by the parties to the protocol can arguably be taken to have included certain trade restrictions against Russia. see Werksman, supra note 83, at 766–69.

⁸⁹ The Declaration by the Ministers of the Environment of the Region of the United Nations Economic Commission for Europe (UN/ECE) and the Member of the Commission of the European Communities Responsible for the Environment, para. 23.1 (Apr. 30, 1993), at http://www.unece.org/env/efe/historyofefe/history.en2011_2.html, urges contracting parties to environmental conventions in the UN/ECE region to develop noncompliance regimes that are, inter alia, nonconfrontational and transparent. The 2002 Report of the Conference of the Parties to the Basel Convention provides that the “mechanism shall be non-confrontational, transparent, cost-effective and preventive in nature, simple, flexible, non-binding and oriented in the direction of helping parties to implement the provisions of the Basel Convention.” Mechanism for Promoting Implementation and Compliance, supra note 82, para. 2 (“Nature of the Mechanism”). The Report of the First Meeting of the Parties to the Aarhus Convention provides that the Meeting of the Parties may take “such other non-confrontational, non-judicial and consultative measures as may be appropriate” in addition to, or instead of, the specific measures listed. Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, supra note 82, para. 37(h); see also Fitzmaurice & Redgwell, supra note 88, at 39; Fitzmaurice, supra note 81, at 25; Loibl, supra note 87, at 427, 435; Treves, supra note 87, at 2.

⁹⁰ According to the recollection of the present author, who participated in the CWC negotiations from March 1991 to September 1992—the very final stage of the negotiations—there was no discussion for including any sort of noncompliance procedure in the CWC. Perhaps the negotiators thought that the possibility of missing the destruction deadline was already covered by the provisions in the Verification Annex that allow such a deadline to be extended.

⁹¹ Statement by H. E. Ambassador Ahmet Üzümcü, Director-General of the Organisation for the Prohibition of Chemical Weapons, Sixty-Fifth Session of the United Nations General Assembly, First Committee (Oct. 13, 2010), at http://www.opcw.org/index.php?eID=dam_frontend_push&docID= 14087. Indeed, the United States had already made clear, in its request for the extension of its CW destruction deadline in 2006, that “at this time we do not expect to be able to meet the proposed April 29, 2012 deadline for destruction of the U.S. declared stockpile of CW” and that “[t]he Executive Council may wish to consider how best to address this situation closer to the deadline.” OPCW Doc. EC-45/NAT.3, at 3 (Apr. 26, 2006).

⁹² OPCW Doc. C-16/DG.18, para. 40 (Nov. 28, 2011).

⁹³ See supra note 83.

⁹ OPCW Doc. C-16/DEC11, supra note 50, pmbl., para. 9.

⁹⁵ Non-compliance Procedure (1998), supra note 82, para. 4 (emphasis added); see also Mechanism for Promoting Implementation and Compliance, supra note 82, para. 9(a); Implementation Committee, Its Structure and Functions and Procedures for Review, supra note 82, para. 4(b); Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, supra note 82, para. 16.

⁹⁶ Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, supra note 82, pt. XV, paras. 3, 7; see also Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, supra note 82, para. 37(c).

⁹⁷ See, e.g., Indicative List of Measures That Might Be Taken by a Meeting of the Parties in Respect of Non-compliance with the Protocol, supra note 86; Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, supra note 82, pt. XV, para. 5(c).

⁹⁸ Under the compliance procedure of the Kyoto Protocol, for instance, the enforcement branch of the Compliance Committee is to make an express declaration when it has determined that a party is noncompliant. Procedures and Mechanisms Relating to Compliance Under the Kyoto Protocol, supra note 82, pt. XV, paras. 1, 5.

⁹⁹ Chemical Weapons Convention, supra note 1, Art. XII, para. 1 (emphasis added).

¹⁰⁰ Krutzsch & Trapp, supra note 37, at 221.

¹⁰¹ The article-by-article analysis prepared by the U.S. Department of State argues that the phrase “address any concern” does not provide for the Executive Council to decide whether noncompliance with the convention has occurred. Article-by-Article Analysis of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, in S. Treaty Doc. NO. 103-21, at 66 (1993) [hereinafter Article-by-Article Analysis]. But see infra note 102.

¹⁰² With regard to Article IX, paragraph 22, mentioned above, even the United States—the champion of the view that only individual states may determine compliance/noncompliance question in each individual case—admits that that paragraph is a “compromise” between “certain developing countries that wanted an international body to decide whether a violation had occurred” and “other negotiating states, including the U.S., that wanted decisions on violations to be left up to each State Party itself to determine.” Article-by-Article Analysis, supra note 101, at 66. As such, the provision may potentially be interpreted either way.

¹⁰³ see Structure and Functions of the Compliance Committee and Procedures for the Review of Compliance, supra note 82, para. 37.

¹⁰⁴ see Mechanism for Promoting Implementation and Compliance, supra note 82, paras. 19–20; Indicative List of Measures That Might Be Taken by a Meeting of the Parties in Respect of Non-compliance with the Protocol, supra note 86, Annex V.

¹⁰⁵ CWC Article X provides for “assistance,” but outside the context of noncompliance. “Assistance” for the purpose of Article X means the “coordination and delivery to States Parties of protection against chemical weapons.”

¹⁰⁶ Cf. Mitchell, Ronald B., Comment on the Paper by Patrick Széll, in Sustainable Development and International Law 111 (Lang, Winfried ed., 1995)Google Scholar.

¹⁰⁷ CWC Article IV, paragraph 16, provides as follows: “Each State Party shall meet the costs of destruction of chemical weapons it is obliged to destroy. It shall also meet the costs of verification of storage and destruction of these chemical weapons unless the Executive Council decides otherwise.”

¹⁰⁸ Paragraph 3(b) of the 2011 CSP decision provides: “The costs for the continued destruction of the chemical weapons by the possessor States concerned and the verification of their destruction shall continue to be met in accordance with Paragraph 16 of Article IV of the Convention.”

¹⁰⁹ Although in the context of Libya’s declarations of November 2011 and February 2012 on its not-previously-declared CWs (meaning that Libya violated declaration obligations), see Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction in 2012,supra note 13, para. 1.10, it is worth noting that the Executive Council, in its decision adopted in March 2012, “[u]rge[d] all States Parties who are in a position to do so to provide bilateral assistance, upon request of the Libyan authorities and in accordance with the provisions of the Convention, to support the efforts of Libya for the destruction of all its chemical weapons.” OPCW Doc. EC-67/DEC.9, para. 6(Mar. 27, 2012).

¹¹⁰ The legal foundation for the Basel Convention’s noncompliance mechanism was its Article 15, paragraph 5(e), which authorized the Conference of the Parties to “[e]stablish such subsidiary bodies as are deemed necessary for the implementation of [the] Convention.” Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, Mar. 22, 1989, 1673 UNTS 57; Mechanism for Promoting Implementation and Compliance, supra note 82, para. 1.

¹¹¹ Note by the Director-General: Summary of Verification Activities in 2007, annex, para. 5.3, OPCW Doc. S/784/2009 (Aug. 7, 2009); OPCW Doc. C.19/CRP.1, para. 1.35 (July 11, 2014).

¹¹² Note by the Director-General, supra note 111, annex, para 5.3.

¹¹³ In fact, the director-general of the OPCW Technical Secretariat apparently treated the question of the destruction of abandoned CWs in a manner similar to that of stockpiled CWs. In his statement made after the April 29, 2012, deadline passed, Director-General Üzümcü noted that “the deadline for the destruction of [abandoned CWs], as established by the [Executive] Council at its Forty-Sixth Session, has not been fully met.” OPCW Doc. EC-68/DG.9, para. 6 (May 1, 2012); see also OPCW Doc. EC-68/DG.6, para. 9 (Apr. 26, 2012).

¹¹⁴ Chemical Weapons Convention, supra note 1, Verification Annex, Part IV(B), para. 15.

¹¹⁵ OPCW Doc. EC-46/DEC.4, para. 2 (July 5, 2006).

¹¹⁶ The preamble to the 2006 decision by the Executive Council on extending the deadline for Japan’s abandoned CWs in China refers to paragraph 17 of the Verification Annex, Part IV(B). Paragraph 17 provides that Article IV and Part IV(A) of the Verification Annex also apply to the destruction of abandoned CWs in principle and that the Executive Council— upon the request of the territorial state party, independently of, or together with, the abandoning state party— “may in exceptional circumstances modify the provisions on the time-limit and the order of destruction,” bearing in mind that any such request “shall contain specific proposals for modification of the provisions and a detailed explanation of the reasons for the proposed modification.” see OPCW Doc. EC-46/DEC.4, supra note 115, pmbl., para. 4. The same preamble also notes that, “in accordance with the aforementioned provisions,” China and Japan submitted a joint request to the Executive Council that it “modify the provisions on the time-limit” and grant an extension of the destruction deadline to April 29, 2012. Id., pmbl., para. 5.

¹¹⁷ OPCW Doc. EC-65/4, para. 6.18 (July 15, 2011); OPCW Doc. EC-66/4, para. 6.24 (Oct. 7, 2011).

¹¹⁸ OPCW Doc. C-16/5, supra note 60, para. 9.7.

¹¹⁹ OPCW Doc. EC-67/DEC.6, para. 2 (Feb. 15, 2012).

¹²⁰ Abandoned Chemical Weapons Office (Japan), Destruction Operation by Mobile Destruction Facilities, at http://wwwa.cao.go.jp/acw/en/jigyobetsu/jigyobetsu_ido_syorijigyo.html.

¹²¹ OPCW Doc. EC-67/DEC.6, supra note 119, annex, para. 1.

¹²² Id., annex, para. 2.

¹²³ Id.

¹²⁴ Chemical Weapons Convention, supra note 1, Verification Annex, Part IV(A), para. 26.

¹²⁵ Id., Verification Annex, Part IV(B), para. 18.

¹²⁶ The first quotation is from OPCW Doc. EC-65/4, supra note 117, para. 6.18, and the second from OPCW Doc. EC-66/4, supra note 117, para. 6.24. The “destruction plan jointly reported to the [Executive] Council by Japan and the People’s Republic of China,” to which the Executive Council decision of February 2012 refers, was reported to the council at its own encouragement and request. In that sense, the Executive Council decision of February 2012, OPCW Doc. EC-67/DEC.6, supra note 119, is different in character from the Executive Council decision of July 2006, which extended the destruction deadline to April 29, 2012, OPCW Doc. EC-46/DEC.4, supra note 115. Whereas the latter decision was based on the request by China and Japan to modify and extend the time limit for destruction in accordance with paragraph 17 of the Verification Annex, Part IV(B), the former decision endorsed the bilateral destruction arrangement that had been encouraged and facilitated by the council itself. This council-motivated process, resulting in the China-Japan bilateral arrangement, had a stronger affinity to the provisions of paragraph 18 than to those of paragraph 17.

¹²⁷ An alternative view, on which this article does not dwell, may be that as far as the United States is concerned, it has not violated its CWC obligations. It may be argued that the United States has complied with Article IV, paragraph 10, which stipulates: “Each 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.” It is unclear, however, whether this provision could trump the obligation to destroy CWs within the time frame prescribed by the CWC. Also of relevance is that, at the CSP meeting in 2011, the United States did not explicitly rely on this paragraph or otherwise attempt to justify its failure to meet the final extended deadline, though it mentioned the challenge of safe and environmentally sound destruction of more than 27,000 tons of CWs. OPCW Doc. C-16/NAT.31, at 1 (Nov. 29, 2011). Even assuming that it had relied on Article IV, paragraph 10, and that other states parties had accepted its doing so, the 2011 CSP decision cannot be seen solely in that light. That decision covers not only the case of the United States but also those of Libya and Russia, and the above argument based on paragraph 10 cannot apply to these two states. Finally, the United States presented no argument explicitly raising a claim of supervening impossibility of performance or fundamental changes of circum stances.

¹²⁸ In their submitted destruction plans, Libya, Russia, and the United States indicated December 2016, December 2015, and September 2023, respectively, as their planned completion dates. Address by Ambassador Ahmet Üüzümcü, Director-General of the Organisation for the Prohibition of Chemical Weapons, 15th Chemical Weapons Demilitarisation Conference, at 2–4 (May 22, 2012), at http://www.opcw.org/fileadmin/OPCW/ODG/uzumcu/DG_CWD_Glasgow_May_2012.pdf.