¹ U.N. Doc. A/S-15/25, Annex, “Verification and the United Nations,” at 4.

² Charter of the United Nations, Art. 11(1).

³ Ibid., Art. 26.

⁴ For the purposes of this article, “monitoring” means the attainment of factual information or data in relation to the performance of obligations under an arms control agreement, whether through on-site inspection or other legal means ; “evaluation” means the assessment of that information or data in relation to the legal obligations assumed by a party to the treaty; and “enforcement” means the taking of measures either to force a non-compliant state to cease activities that are illegal or to compensate for illegal activities.

⁵ Charter, Art. 24.

⁶ This is a simplified view of the division between binding and non-binding Security Council resolutions, though it may be supported by actual practice in the Council. For a full review of the question see Higgins, Rosalyn, “The Advisory Opinion on Namibia: Which UN Resolutions are Binding Under Article 25 of the Charter?” (1972) 21 I.C.L.Q. 270.CrossRefGoogle Scholar

⁷ Charter, Arts. 11, 12.

⁸ Ibid., Arts. 10, 12.

⁹ Ibid., Art. 11(2).

¹⁰ Ibid., Art. 11(3).

¹¹ Ibid., Art. 98.

¹² Sur, Serge, “La résolution A/37/98D du 13 décembre 1982 et les procédures d’enquête en cas d’usage allégué d’armes chimiques et bactériologiques (bio-logiques),” (1984) 30 Ann. Fran. Dr. Int’l 93, at 97.CrossRefGoogle Scholar

¹³ Ibid. It may also be noted that in a study of the 1978 French proposal for an International Satellite Monitoring Agency, the group of experts appointed by the Secretary-General appears simply to have made the operating assumption that the General Assembly has the power to engage in fact-finding missions. “The Implications of Establishing an International Satellite Monitoring Agency,” Report of the Secretary-General, 1983 (Department of Disarmament Affairs, Study Series No. 9), UN Doc. A/AC.206/14, para. 359.

¹⁴ See the Charter, Art. 34. For a review of this point in a more general context, see Shore, William I., Fact-Finding in the Maintenance of International Peace 84–98 (1970)Google Scholar; Bensalah, Tabrizi, L’Enquête internationale dans le règlement des conflits: règles juridiques applicables 127–32 (1976).Google Scholar

¹⁵ See Bar-Yaacov, Nissim, The Handling of International Disputes by Means of Inquiry (1974) esp. at 320–21Google Scholar; and Marion, M. Loïc, “Remarques sur l’échec d’un projet de réforme de l’énquête internationale,” (1975) 11 Rev. Belge Dr. Int’l 475.Google Scholar

¹⁶ The history of “yellow rain” is recounted in Julian Robinson, Guillemin, Jeanne, and Meselson, Matthew, “Yellow Rain: The Story Collapses,” (1987) 68 Foreign Policy 100 Google Scholar: and Harris, Elisa, “Sverdlosk and Yellow Rain: Two Cases of Soviet Noncompliance?” (1987) 11 International Security 41.CrossRefGoogle Scholar

¹⁷ A brief history of General Assembly Resolution 35/144C, December 12, 1980, from the introduction of the draft text to its final adoption, can be found in United Nations Disarmament Yearbook, 1980, at 254–57.

¹⁸ 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, ( 1925) 94L.N.T.S. 65; (1975) 14I.L.M.49.

¹⁹ 1969 Vienna Convention on the Law of Treaties, (1969) 8 I.L.M. 679. This question will be returned to below.

²⁰ These arguments are recounted in United Nations Dharmament Yearbook, 1980, at 255.

²¹ Bulgaria, Czechoslovakia, Hungary, Laos People’s Democratic Republic, Mongolia, and Poland.

²² United Nations Disarmament Yearbook, 1980, at 254–55. It should be noted that the alleged uses were in socialist bloc states.

²³ 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, (1972) 26 U.S.T. 583; (1972) 11 I.L.M. 310.

²⁴ Ibid., Arts. 5, 6.

²⁵ General Assembly Resolution 35/ 144C, December 14, 1980, para. 4.

²⁶ “Chemical and Bacteriological (Biological) Weapons: Report of the Secretary-General,” U.N. Doc. A/36/613, November ao, 1981.

²⁷ Ibid., Annex, at a.

²⁸ Ibid., Annex, at 35.

²⁹ Ibid., Annex, at 34–35.

³⁰ General Assembly Resolution 36/96C, December 9, 1981. The resolution was adopted by a vote of 86–20, with 34 abstentions. For a discussion, see United Nations Disarmament Yearbook,1981, at 230–33.

³¹ “Chemical and Bacteriological (Biological) Weapons, Report of the Secretary-General,” U.N. Doc. A/37/259, December 1, 1982.

³² Ibid., Annex, at 4.

³³ Ibid., Annex, at 48–50.

³⁴ See United Nations Disarmament Yearbook, 1982, at 333–34.

³⁵ General Assembly Resolution 37/98E, December 13, 1982, paras, i, 2.

³⁶ See, for example, “Report on Soviet Noncompliance with Arms Control Agreements,” January 23, 1984, State Department Bulletin, March 1984, at 8–11; “Soviet Noncompliance with Arms Control Agreements,” March 10, 1987, Department of State Special Report No. 163. There were also a number of other official reports and statements from 1984-88. “Yellow rain” was one of several alleged violations in these reports.

³⁷ The most important operative paragraphs of General Assembly Resolution 37/98D, December 13, 1982, are:

The General Assembly…

• 4.

  4. Requests the Secretary-General to investigate, with the assistance of qualified experts, information that may be brought to his attention by any Member State concerning activities that may constitute a violation of the Protocol or of the relevant rules of customary international law in order to ascertain thereby the facts of the matter, and promptly to report the results of any such investigation to all Member States and to the General Assembly;

• 5.

  5. Requests the Secretary-General, with the co-operation of Member States, to compile, as a matter of priority, and maintain lists of qualified experts whose services could be made available at short notice to undertake such investigations, and of laboratories with the capability to undertake testing for the presence of agents the use of which is prohibited;

• 6.

  6. Requests the Secretary-General, in meeting the objectives of paragraph 4 above :

• (a)

  (a) To appoint, as necessary, groups of experts selected from the above-mentioned list to undertake urgent investigation of possible violations;

• (b)

  (b) To make the necessary arrangements for the experts to collect and examine evidence, including on-site, with the co-operation of the countries concerned, to the extent relevant to the investigation, and for such testing as may be required ;

• (c)

  (c) To seek, in any such investigation, appropriate assistance and relevant information from all Governments and international organizations concerned, as well as from other appropriate sources;

• 7.

  7. Further requests the Secretary-General, with the assistance of qualified consultant experts, to devise procedures for the timely and efficient investigation of information concerning activities that may constitute a violation of the Geneva Protocol or the relevant rules of customary international law and to assemble and organize systematically documentation relating to the identification of signs and symptoms associated with the use of such agents as a means of facilitating such investigations and the medical treatment that may be required. …

³⁸ The above arguments are summarized in United Nations Disarmament Yearbook, 1982, at 327–29. A review of the legal issues concerning this resolution is found in Sur, op. cit. supra note 12, at 95–98.

³⁹ United Nations Disarmament Yearbook, 1982, at 329.

⁴⁰ On these points, I agree with Sur, op. cit. supra note 12, at 97.

⁴¹ “Chemical and Bacteriological (Biological) Weapons, Report of the Secretary-General,” U.N. Doc. A/39/488, October 2, 1984.

⁴² See United Nations Disarmament Yearbook, 1984, at 332. This view was to be reversed by 1987, as will be seen below.

⁴³ Supra note 41, Annex, para. 13.

⁴⁴ Report of the Secretary-General, supra note 41, Annex, at 21–22, paras. 13–14.

⁴⁵ Sur, op. cit. supra note 12, at 99.

⁴⁶ General Assembly Resolution A/39/65E, December 12, 1984, para. 2.

⁴⁷ “Handbook for the Investigation of Allegations of the Use of Chemical or Biological Weapons,” Government of Canada, November 1985, presented to the Secretary-General on December 4, 1985. For a review of the content of this handbook, in conjunction with the final report of the group of experts, see Sapiro, Miriam E., “Investigating Allegations of Chemical or Biological Warfare: The Canadian Contribution,” (1986) 80 A.J.I.L. 678.Google Scholar

⁴⁸ Sur, op. cit. supra note 12, at 97, 102.

⁴⁹ This sequence of events is related in the opening paragraphs of the report, “Mission to Inspect Civilian Areas in Iran and Iraq Which Have Been Subject to Military Attack,” U.N. Doc. S/15834, June 20, 1983, at 1.

⁵⁰ See, e.g., Security Council Resolution 540 (1983), October 31, 1983.

⁵¹ “Report of the Specialists Appointed by the Secretary-General to Investigate Allegations by the Islamic Republic of Iran Concerning the Use of Chemical Weapons,” U.N. Doc. S/16433, March 26, 1984. The lead-up to the investigation is summarized at 1-2 of the Report

⁵² Ibid., at 2.

⁵³ Ibid., at 3.

⁵⁴ Ibid., and see the conclusion of the Report, at 11–12.

⁵⁵ U.N. Doc. S/16454, March 30, 1984.

⁵⁶ Sur, op. cit. supra note 12, at 106.

⁵⁷ United Nations Disarmament Yearbook, 1984, at 334–35.

⁵⁸ Sur, op. cit. supra note 12, 106.

⁵⁹ U.N. Doc. S/17127, Annex, April 24, 1985.

⁶⁰ U.N. Doc. S/17130, April 25, 1985.

⁶¹ These events are described in the third report on chemical weapons use, “Report of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and Iraq,” U.N. Doc. S/17911, March 12, 1986, at 1.

⁶² Ibid., at 2.

⁶³ Security Council Resolution 582(1986), February 24, 1986, at operative para. 2.

⁶⁴ As reported in the March 1986 Report, op. cit. supra note 61, at 2.

⁶⁵ Ibid., at 18.

⁶⁶ Ibid., at4, and U.N. Doc. S/17932, March 21, 1986, respectively.

⁶⁷ “Report of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and Iraq,” U.N. Doc. S/18852, May 8, 1987, at 18–19.

⁶⁸ Ibid., at 2, and U.N. Doc. S/18863, May 14, 1987, respectively.

⁶⁹ Report of March 1986, op. cit. supra note 61, at 6.

⁷⁰ In fact, the effort had begun in 1986 with a draft resolution proposed by France to the First Committee of the General Assembly which supported the role of the Secretary-General in the conduct of investigations. Following consultations, however, France did not press the draft resolution to a vote. See “The United Nations General Assembly and Disarmament 1986,” United Nations Department for Disarmament Affairs, 1987, at 154–55.

⁷¹ See the Report of the First Committee, “Chemical and Bacteriological (Biological) Weapons,” A/42/750, November 19, 1987, and General Assembly record of debate, A/42/P.V.84, December 3, 1987, at 36. Indeed, there was no debate on this resolution at the plenary session. The draft was adopted as Resolution 42/37C ( 1987), on November 30, 1988.

⁷² U.N. Doc. A/C.1/42/P.V.23, November 4, 1987, at 28.

⁷³ U.N. Doc. A/C.1/42/P.V.37, November 16, 1987, at 3–5.

⁷⁴ See their respective statements in A/C.1/42/P.V.37, November 16, 1987, at 11; and A/C.1/42/P.V.41, November 17, 1987, at 32.

⁷⁵ “Report of the Mission Dispatched by the Secretary-General to Investigate the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and Iraq,” S/19823, April 25, 1988 (hereinafter, April 1988 Report). Unlike previous missions to the field of battle, this one was comprised solely of a medical and a political officer.

⁷⁶ Ibid., Annex, at 6.

⁷⁷ Ibid., Note of the Secretary-General, para. 11.

⁷⁸ Letter from Iran to the Secretary-General, S/19844, April 27, 1988.

⁷⁹ Letter from Iran to the Secretary-General, S/19886, May 16, 1988.

⁸⁰ S/Res./612 (1988), May 9, 1988, was adopted at Council session no. 2812. The informal nature of the discussions leading to its adoption is confirmed by the comment of the President of the Council: “The Security Council is meeting today pursuant to an agreement reached during prior consultations.” No substantive discussions are reported in the records. See S/P.V./2812, May 9, 1988.

⁸¹ See Letter from Iran to the Secretary-General, S/19942, June 16, 1988.

⁸² “Report of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict Between the Islamic Republic of Iran and Iraq,” S/20063, July 20, 1988, Note by the Secretary-General; and similarly titled reports of July 25, 1988, S/20063, and August 19, 1988, S/20134.

⁸³ This is confirmed by Security Council Resolution 620 (1988), August 26, 1988.

⁸⁴ Letter from Iran to the Secretary-General, S/19886, May 16, 1988. In this letter, Iran was critical of the whole of Resolution 612 for failing to specifically name Iraq, particularly with regard to the use of chemical weapons in Halabja, and for failing to take any punitive measures or provide a mechanism for the investigation of further disputes. “In our opinion, the Security Council not only failed to confront the issue of Halabja with enough determination to halt future uses of chemical weapons but also left the door open for Iraq to continue its illicit use of chemical weapons.” This position was effectively repeated on other occasions, see, e.g., Letter from Iran to the Secretary-General, S/19942, June 16, 1988.

⁸⁵ Letter from Iran to the Secretary-General, 8/19967, June 27, 1988.

⁸⁶ Report of July 20, 1988, op. cit. supra note 82, Note by the Secretary-General, para. 5.

⁸⁷ Ibid., para. 7.

⁸⁸ Ibid., para. 8. This exchange of letters is discussed in the report mentioned in note 61.

⁸⁹ Report of July 25, 1988, S/20063, op. cit. supra note 82. Note by the Secretary-General, paras. 1, 2.

⁹⁰ Report of August 19, 1988, S/20134, op. cit. supra note 82.

⁹¹ Ibid., para. 4.

⁹² Ibid., para. 5.

⁹³ Ibid., para. 9.

⁹⁴ U.N. Doc. S/P.V. 2825, August 26, 1988.

⁹⁵ Para. 3 of the resolution reiterated the call for export controls on material which could be used for the production of these weapons.

⁹⁶ General Assembly Resolution 43/74A, 1988.

⁹⁷ See, e.g., the following letters from Iran to the Secretary-General: S/19886, May 16, 1988; S/19967, June 27, 1988.

⁹⁸ See “UN Chief to Declare Cease-Fire in Iran-Iraq War,” Paul Lewis, New York Times, August 2, 1988, at A1, A9.

⁹⁹ See, e.g., “The Enemy’s Friend Pays the Price,” The Economist, September 3-9, 1988, Vol. 308, No. 7566.

¹⁰⁰ See Julian Robinson et al., and Harris, op. cit. supra note 16.

¹⁰¹ See, e.g., M. Loïc Marion and Nissim Bar-Yaacov, op. cit. supra note 15.

¹⁰² Although it may be argued that Iran and Iraq had requested these investigations, it must be pointed out that they were always conducted on an adversarial basis, at the request of one party, with no access to the alleged user state either being sought, or, if sought, granted. Thus, the effort was not as a result of the joint approach of both states.

¹⁰³ See the Report of the Disarmament Commission to the Fifteenth Special Session of the General Assembly, A/S-15/3, 1988 (Third Special Session on Disarmament), at 45. These principles were endorsed in General Assembly Resolution 43/8 iB, December 7, 1988, operative para. 3. This Resolution was adopted by a vote of 150 to 1, with no abstentions. The opposing vote was from the United States.

¹⁰⁴ Op. cit. supra note 1, at 7. Original emphasis.

¹⁰⁵ Final Declaration, Paris Conference on Chemical Weapons, January 7–11, 1989, para. 5.