This is a very quick reaction to the agreement between Russia and the United States to address Syria’s chemical weapons. My interpretations may change as more background information becomes available. I am sure that over the next few days there will be many background briefings to add texture to the individual paragraphs in the agreement. I welcome comments challenging or supplementing my views, and will revise this posting accordingly.
Generally speaking, the bilateral agreement takes the Chemical Weapons Convention (CWC) and the fact that Syria has just submitted its instrument of accession to the UN Secretary General as the point of departure. The Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW) will play its full role in the determination of the of the specific destruction timeframes, even though Russia and the USA are likely to press their case very strongly. The EC comprises 41 states parties. They are elected within and proposed by their respective regional caucuses. All voting in the OPCW decision-making bodies is on the basis of one state party/one vote. Under normal circumstances, states parties strive for consensus in their decision-making, but given the urgency with which Russia and the USA wish to have the Syrian question addressed, one should not be surprised to see majority voting results emerge from the EC meetings. Such majority voting should also not be viewed as undermining the legitimacy of the process, because it is foreseen in the treaty text.
The bilateral agreement also foresees roles for the United Nations, the UN Security Council and the UN Secretary General, but their exact purpose is not always clear from the document. It might be that the negotiators opened the door for an arrangement such as the UN Special Commission, which in the 1990s was responsible for the discovery and destruction of Iraq’s chemical and biological weapons. If this is the case, it might allow for CW destruction methods not normally considered in the framework of the CWC, and therefore enable completion of destruction operations by mid-2014.
It is clear that the present document represents an agreement between Moscow and Washington to promote a common strategy in the pursuit of eliminating Syria’s CW within various international bodies. It offers tight deadlines, but those international bodies will determine when the countdown to those deadlines commences. In addition, the practical execution of some proposed options may require diplomatic and legal creativity.
More detailed comments and thoughts I have inserted in the text below.
 

Text of the bilateral agreement

Taking into account the decision of the Syrian Arab Republic to accede to the Chemical Weapons Convention and the commitment of the Syrian authorities to provisionally apply the Convention prior to its entry into force, the United States and the Russian Federation express their joint determination to ensure the destruction of the Syrian chemical weapons program (CW) in the soonest and safest manner.
For this purpose, the United States and the Russian Federation have committed to prepare and submit in the next few days to the Executive Council of the OPCW a draft decision setting down special procedures for expeditious destruction of the Syrian chemical weapons program and stringent verification thereof. The principles on which this decision should be based, in the view of both sides, are set forth in Annex A. The United States and the Russian Federation believe that these extraordinary procedures are necessitated by the prior use of these weapons in Syria and the volatility of the Syrian civil war.

The highlighted passages recognise the central role of the CWC and therefore of the EC in the decision-making required to implement the bilateral agreement. They also recognise the exceptionality of what the EC is being requested.

The United States and the Russian Federation commit to work together towards prompt adoption of a UN Security Council resolution that reinforces the decision of the OPCW Executive Council. This resolution will also contain steps to ensure its verification and effective implementation and will request that the UN Secretary-General, in consultation with the OPCW, submit recommendations to the UN Security Council on an expedited basis regarding the UN’s role in eliminating the Syrian chemical weapons program.

Does this paragraph open the way for an UNSCOM-like solution, whereby the verification and destruction operations would be undertaken under the auspices of the UNSC, and a committee to oversee the actual operations? In that scenario, would the OPCW supply the inspectors to the UN in the framework of a bilateral agreement yet to be signed and approved by both organisations? (The negotiation of such an agreement and its adoption by both bodies will also require time, but the text might conceivably be based on elements in the two already existing accords concerning investigations of alleged use.)

If a multinational military force is required to ensure the safety and security of the international staff, then the UN would also be expected to play a role in the scenarios outlined by this document.

The United States and the Russian Federation concur that this UN Security Council resolution should provide for review on a regular basis the implementation in Syria of the decision of the Executive Council of the OPCW, and in the event of non-compliance, including unauthorized transfer, or any use of chemical weapons by anyone in Syria, the UN Security Council should impose measures under Chapter VII of the UN Charter.

The first highlight may suggest an UNSCOM-like mechanism.

Some may view the 2nd highlight as a diplomatic point for the US, but nobody can guarantee that none of the P5 will exert its veto option. In this respect, the UNSCOM experience leaves little room for confidence.

The proposed joint US-Russian OPCW draft decision supports the application of Article VIII of the Chemical Weapons Convention, which provides for the referral of any cases of non-compliance to the United Nations General Assembly and the United Nations Security Council.

This is self-evident, but highlighting this power of the EC (Article VIII, para. 36) sends a strong political signal. However, again, the referral will remain a sovereign decision by the EC.

In furtherance of the objective to eliminate the Syrian chemical weapons program, the United States and the Russian Federation have reached a shared assessment of the amount and type of chemical weapons involved, and are committed to the immediate international control over chemical weapons and their components in Syria. The United States and the Russian Federation expect Syria to submit, within a week, a comprehensive listing, including names, types, and quantities of its chemical weapons agents, types of munitions, and location and form of storage, production, and research and development facilities.

While early commentaries view the week time frame in absolute terms (i.e., until 21 September 2013), the highlighted passage actually seems to express an expectation, not an enforceable obligation. This would be logical, as the document envisages a central role for the EC in determining what Syria should do given the extraordinary circumstances. Furthermore, the week (or whichever time frame the EC agrees) would have to be counted from the moment of that decision. It is my understanding that the EC will convene on Wednesday to consider the bilateral agreement.

I would also read the passage in conjunction with Annex A, point 5 of this agreement (see below), which refers to the EC determining the type of early information required and specifying an early date for submission of the formal CWC declaration.

We further determined that the most effective control of these weapons may be achieved by removal of the largest amounts of weapons feasible, under OPCW supervision, and their destruction outside of Syria, if possible. We set ambitious goals for the removal and destruction of all categories of CW related materials and equipment with the objective of completing such removal and destruction in the first half of 2014. In addition to chemical weapons, stocks of chemical weapons agents, their precursors, specialized CW equipment, and CW munitions themselves, the elimination process must include the facilities for the development and production of these weapons. The views of both sides in this regard are set forth in Annex B.

The option in the first highlighted clause is questionable in my mind, and its feasibility has to be investigated, the document recognises. Article I of the CWC is quite clear in its prohibition: Each State Party to this Convention undertakes never under any circumstances: (a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or [for Syria, now having deposited its instrument of accession to the CWC] transfer, directly or indirectly, chemical weapons to anyone. Considering that all of Syria’s neighbours with the exception of Israel are parties to the CWC, removal of the CW outside of Syria will be difficult. Moreover, even if the USA were ready to accept the CW on US territory for destruction, what about federal and state laws that prohibit the transfer of CW from one US state to another? How would they travel through the Straits of Gibraltar? The same same goes for Russia, even when imagining that the CW could travel through Turkish waters at the Bosporus. Airlifting also appears excluded, because airspace is sovereign.

The second highlighted clause emphasises the political nature of the objective. It is not absolute, particularly given the role to be played by the EC. However, the final deadline does not lack ambition and will be challenging to achieve, particularly if one considers the types of destruction methods and technologies habitually applied in the CWC framework. Even the deployment to Syria of mobile incinerators may not achieve that deadline. In contrast, if one takes the possibility of CW destruction operations as undertaken by UNSCOM in Iraq under consideration, then the deadline becomes more plausible.

The United States and the Russian Federation have further decided that to achieve accountability for their chemical weapons, the Syrians must provide the OPCW, the UN, and other supporting personnel with the immediate and unfettered right to inspect any and all sites in Syria. The extraordinary procedures to be proposed by the United States and the Russian Federation for adoption by the OPCW Executive Council and reinforced by a UN Security Council resolution, as described above, should include a mechanism to ensure this right.

This is an interesting passage, as the CWC envisages inspector access within certain parameters to all declared sites. The convention also contains the option of the challenge inspection, which allows inspectors to go to any place within the country at very short notice. Therefore, it may refer to what officials may undertake under UN auspices and thus carry echoes of the UNSCOM mandate. However, since UN involvement might be limited to the creation and deployment of a multinational force to ensure security and safety of staff implementing the decisions, the passage could refer to the creation of a legal foundation to allow those troops and equipment operators access to the CW-related sites.

Under this framework, personnel under both the OPCW and UN mandate should be dispatched as rapidly as possible to support control, removal, and destruction of Syria’s chemical weapons capabilities.
The United States and the Russian Federation believe that the work of the OPCW and the UN will benefit from participation of the experts of the P5 countries.

P5 members were excluded from participating in the investigation of alleged use of CW, for good reasons given the desire of France, the UK and the USA to initiate punitive strikes against Syria. Russia and the USA thus build a case for restoring a role for inspectors with their respective nationalities, and for using national expertise in destroying CW. It is not clear yet how much the proposed disarmament of Syria will cost and who will fund the costs that result directly from implementing this plan. (Under normal circumstances, Syria would have to bear the cost of destroying the chemical munitions, installations and equipment specifically related to CW, as well as of OPCW inspection missions to oversee and certify their destruction. Other parties to the CWC may decide to assist the country financially or through the provison of technology and expertise.) It is an open question whether Moscow or Washington would contribute the same amounts of money if there were no return of investment for national contractors. Irrespective of such speculation, it remains a fact that few other countries possess the knowledge and expertise in sufficient quantities (e.g., personnel) to support CW destruction operations on the scale and within the timeframes proposed in the bilateral agreement.

The United States and the Russian Federation strongly reiterate their position on Syria as reflected in the Final Communique of the G-8 Summit in Northern Ireland in June 2013, especially as regards chemical weapons.
The two sides intend to work closely together, and with the OPCW, the UN, all Syrian parties, and with other interested member states with relevant capabilities to arrange for the security of the monitoring and destruction mission, recognizing the primary responsibility of the Syrian Government in this regard.
The United States and the Russian Federation note that there are details in furtherance of the execution of this framework that need to be addressed on an expedited basis in the coming days and commit to complete these details, as soon as practicable, understanding that time is of the essence given the crisis in Syria.

Annex A
Principles for Decision Document by OPCW Executive Council

1. The decision should be based on para 8. Art. IV and para. 10 of Art V of the CWC.

Both provisions stipulate the EC responsibilities in determining the interim and final destruction deadlines for CW and production facilities respectively now that the treaty-defined timelines have expired (i.e., ten years to be counted from the date of entry into force of the CWC).

2. The decision should address the extraordinary character of the situation with the Syrian chemical weapons.
3. The decision should take into account the deposit by Syria of the instrument of accession to the CWC.
4. The decision should provide for the easy accessibility for States Parties of the information submitted by Syria.
5. The decision should specify which initial information Syria shall submit to the OPCW Technical Secretariat in accordance with a tightly fixed schedule and also specifies an early date for submission of the formal CWC declaration.
6. The decision should oblige Syria to cooperate fully on all aspects of its implementation.
7. The decision should address a schedule for the rapid destruction of Syrian chemical weapons capabilities. This schedule should take into account the following target dates:

A. Completion of initial OPCW on-site inspections of declared sites by November.

B. Destruction of production and mixing/filling equipment by November.

C. Complete elimination of all chemical weapons material and equipment in the first half of 2014.

The shortest possible final deadline, as well as intermediate deadlines, for the destruction of Syrian chemical weapons capabilities should be included into the schedule.
8. The decision should provide stringent special verification measures, beginning within a few days, including a mechanism to ensure the immediate and unfettered right to inspect any and all sites.
9. The decision should address the issue of duties of the OPCW Technical Secretariat in this situation and its need for supplementary resources to implement the decision, particularly technical and personnel resources, and call upon states with relevant capacities to contribute to this end.
10. The decision should refer to the provisions of the CWC obliging the Executive Council, in cases of non-compliance with the Convention, to bring the issues directly to the attention of the UN General Assembly and the UN Security Council.

 Annex B
Joint Framework on Destruction of Syrian CW

 The Russian Federation and the United States of America agree on the need to achieve rapid elimination of Syria’s chemical weapons, thus reducing the threat posed to the people of Syria. They are each prepared to devote high-level attention and resources to support the monitoring and destruction mission of the OPCW, both directly and in cooperation with the United Nations and other States concerned. They agree to set an ambitious goal of eliminating the threat in a rapid and effective manner.
Both parties agree that a clear picture of the state of Syrian chemical weapons could help advance a cooperative development of destruction options, including possible removal of chemical weapons outside of the Syrian territory. We agree on the importance of rapid destruction of the following categories:

1. Production equipment

2. Mixing and filling equipment

3. Filled and unfilled weapons and delivery systems

4. Chemical agents (unweaponized) and precursor chemicals. For these materials, they will pursue a hybrid approach, i.e., a combination of removal from Syria and destruction within Syria, depending upon site-specific conditions. They will also consider the possibility of consolidation and destruction in the coastal area of Syria.

5. Material and equipment related to the research and development of chemical weapons

I am intrigued by the inclusion of ‘research’ in this document, as the term is not part of Article I, 1(a) of the CWC.

The two parties agree to utilize the “universal matrix”, developed in the course of consultations by our two National Security Councils, as the basis for an actionable plan.
They agree that the elimination of chemical weapons in Syria should be considered an urgent matter to be implemented within the shortest possible time period.
The parties agree to set the following target dates:
A. Completion of initial OPCW on-site inspections by November.
B. Destruction of production and mixing/filling equipment by November.
C. Complete elimination of all chemical weapons material and equipment in the first half of 2014.
The Russian Federation and the United States will work together closely, including with the OPCW, the UN and Syrian parties to arrange for the security of the monitoring and destruction mission, noting the primary responsibility of the Syrian government in this regard.

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