Towards a culture of legality in international organizations: The case of the OPCW

International Organizations Law Review

Volumn 5, Issue 1, 2008, Pages 119-139

  Dunworth, Treasa ^a  

^a UNIVERSITY OF AUCKLAND   (New Zealand)

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EID: 65149106362     PISSN: 15723739     EISSN: 15718069     Source Type: Journal    
DOI: 10.1163/157237408X327759     Document Type: Article

References (105)

1. Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Teir Destruction, Sept. 3, 1992 [hereinafter CWC]. The Convention opened for signature on 13 January, 1993 and entered into force on 29 April 1997. It currently has 184 state parties.
2. OPCW Home Page, .
3. The most obvious example being the (now discontinued) negotiations for a binding protocol for the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction.
4. See the Global Administrative Law Project at the Institute for International Law and Justice, NYU, ;
5. Benedict Kingsbury, Nico Krisch & Richard B. Stewart "The Emergence of Global Administrative Law", 68 Law & Contemp. Probs 15 (2005);
6. Nico Krisch & Benedict Kingsbury, "Introduction: Global Governance and Global Administrative Law in the International Legal Order", 17 Eur. J. Int'l L. 1 (2006).
7. This discussion is confned to a narrow view of accountability, being the accountability of the Organization to its member states for operational acts, which are those acts relating to the functions and achievement of the aims of the Organization. See C. F. Amerasinghe, Principles of the Institutional Law of International Organizations 192-193 (1996).
8. Possibly along the lines explored by Jan Klabbers, " Constitutionalism Lite", 1 Int'l Org. L. Rev. 31, 31 (2004).
9. See Part IV, infra.
10. CWC, supra note 1, art. VIII(9)-(37).
11. CWC, supra note 1, art. VIII(46).
12. For an early critique, see Amy S. Smithson, Rudderless: The Chemical Weapons Convention at 11/2 (1998), at 21, available at (arguing that the Conference has taken "liberties in elaborating and interpreting the CWC's provisions, crafting a subtle and interrelated series of operational practices that dilute the CWC's basic verifcation provisions").
13. Each plant site should receive an initial inspection as soon as possible but preferably not later than three years after entry into force of the Convention. See CWC, supra note 1, Verifcation Annex, Part VII, para. 16) No plant site is to receive more than two inspections per calendar year (excluding challenge inspections). See CWC, supra note 1, Verifcation Annex, Part VII, para. 22.
14. See, e.g., CWC, supra note 1, Part VII, para.16 "Verifcation Annex", provides: "Selection of plant sites for initial inspections shall be made by the Technical Secretariat in such a way as to preclude the prediction of precisely when the plant site is to be inspected." Paragraph 20 reads: "In selecting particular plant sites for inspection and in deciding on the frequency and intensity of inspections, the Technical Secretariat shall give due consideration to the risk to the object and purpose of this Convention posed by the relevant chemical, the characteristics of the plant site and the nature of the activities carried out there, taking into account the respective facility agreement as well as the results of the initial inspections and subsequent inspections."
15. See CWC, supra note 1, art. VIII(20).
16. See CWC, supra note 1, art. VIII(37).
17. See Walter Krutzsch & Ralf Trapp, A Commentary on the Chemical Weapons Convention 164 (1994).
18. See OPCW, Statement by the Director-General to the Conference of the States Parties at its Third Session, paras 6-7, C-III/DG.12,(16 Nov. 1998).
19. See generally Sean D. Murphy, "U.S. Initiative to Oust OPCW Director-General", 96 Am. J. Int'l L. 711 (2002);
20. Jan Klabbers, "The Bustani Case before the ILOAT: Constitutionalism in Disguise?", 53 Int'l & Comp.L.Q. 455 (2004).
21. See OPCW, Appointment of the Director-General, C-1/DEC.2 (13 May 1997).
22. See OPCW, Renewal of the Appointment of the Director-General, C-V/DEC.22 (19 May 2000).
23. Concerns are detailed in statements made by the United States to the Executive Council, available at U.S. Department of State, .
24. See also Murphy, supra, note 16.
25. 17-5-18 (for-against-abstaining). The Rules of Procedure of the Executive Council provide that decisions will be made by a two-thirds majority of all its members: OPCW, Rules of Procedure of the Executive Council, Rule 36, C-I/DEC.72 (23 May 1997), reprinted in OPCW: The Legal Texts 384-394 (Lisa Tabassi ed., 1999). Thus, in a 41 member Council, at least 28 states must cast an afrmative vote.
26. For a report on the vote, see Pamela Mills, "Progress in the Hague", 56 The CBW Conventions Bulletin 7, 8 (June 2002).
27. 48-7-43 (for-against-abstaining). A two-thirds majority of members "present and voting" was required to remove Mr. Bustani: OPCW, Rules of Procedure of the Conference, Rule 69, C-I/3 (12 May 1997).
28. reprinted in Tabassi, supra note 20, at. 367. Rule 71 defnes the term "Members present and voting" as "Members casting a valid afrmative or negative vote." It goes on: "Members who abstain from voting shall be regarded as not voting." Tus, in this case, a two-thirds majority of the 55 states voting was required and the 43 states abstaining are not included in the count.
29. In re Bustani, No.2232, at 15 (Int'l Lab. Org. Admin. Trib 2003).
30. For discussion, see Klab-bers, supra note 16. Mr. Bustani had not sought reinstatement, and the Conference of the States Parties subsequently appointed Ambassador Rogelio Pfrter in his place. For the new appointment: OPCW, Appointment of the Director-General, C-SS-1/DEC.3 (25 July 2002).
31. See In re Bustani, supra note 22, at B.
32. See OPCW, Note by the Director-General, C-SS-1/DG.6 (21 Apr. 2002).
33. Member States are assessed in accordance with the UN Scale of Assessment, adjusted to take account of diferent membership. See OPCW, Scale of Assessments, C-I/DEC.75 (23 May 1997).
34. For 2002 assessments, see OPCW, Scale of Assessments for 2002, C-VI/DEC.20 (19 May 2001).
35. See John Hart, Frida Kuhlau & Jacqueline Simon, "Chemical and Biological Weapons Developments and Arms Control", 2003 SIPRI Y.B. 645, 651.
36. G.A. Res. 55/283, Annex, Agreement Concerning the Relationship Between the United Nations and the Organization for the Prohibition of Chemical Weapons, U.N. Doc. A/RES/55/283 (24 Sept. 2001). The Agreement referred to was concluded in 2000 and entered into force in 2001.
37. Rules of Procedure of the Conference, supra note 21, Rule 56.
38. Id.
39. See generally, Henry G. Schermers & Niels M. Blokker, International Institutional Law: Unity Within Diversity §351-353 (4th edn, 2003).
40. See Rules of Procedure of the Conference, supra, note 21, Rule 56 ("A representative rising to a point of order may not speak on the substance of the matter under discussion.").
41. See id., Rules 69-70.
42. See Rules of Procedure of the Conference, supra note 21, Rule 15.
43. In fact, even to get on the provisional agenda, the Executive Council needs to approve it. See Rule 12.
44. See Rules of Procedure of the Conference, supra note 21, Rules 20, 39.
45. See CWC, supra note 1, art. VIII(18). This is to assume that the decision is a substantive, not a procedural one. However, note also that art. VIII(18) provides that when "the issue arises as to whether the question is one of substance or not, that question shall be treated as a matter of substance unless otherwise decided by the Conference by the majority required for decisions on matters of substance." See also Rules of Procedure of the Conference, supra note 21, Rule 70.
46. CWC, supra note 1, art. XIV(2), art. XIV(5).
47. See Agreement concerning the relationship between the United Nations and the Organisation for the Prohibition of Chemical Weapons (Relationship Agreement), art. VII(2) (2001) ("The United Nations and OPCW agree that each such request for an advisory opinion shall first be submitted to the General Assembly, which will decide upon the request in accordance with Article 96 of the Charter.").
48. See, e.g., Intergovernmental Maritime Consultative Organization, discussed by Elihi Lau-terpacht, "The Legal Efect of Illegal Acts of International Organisations", in Cambridge Essays in International Law: Essays in Honour of Lord McNair 88 (Robert Jennings ed., 1965).
49. See CWC, supra note 1, art. VIII(12)(c).
50. A course of action challenged before the International Labour Organization Administrative Tribunal (ILOAT): In re Bustani, supra note 22, at B. The ILOAT did not decide the issue.
51. This veto power only extends to the provisions of the treaty itself. The amendment provisions relating to the Annexes are more nuanced: CWC, supra note 1, art. XV(4)-(5).
52. Mills, supra,note 20, at 8. Brazil's special interest in the matter is explained by the fact that Mr. Bustani is Brazilian.
53. See id.
54. See CWC, supra note 1, art. VIII(43), (46), (47), (49).
55. The text of the Opinion is set out in Note by the Director-General, supra note 24.
56. Although the Scientifc Advisory Board is specifcally envisaged in the treaty itself. See CWC, supra note 1, art. VIII(21)(h), (45).
57. See CWC, supra note 1, art. VIII(21)(h).
58. See Kathleen Lawand, "The Scientifc Advisory Board of the Organization for the Prohibition of Chemical Weapons: The Role of Science in Treaty Implementation", The CBW Conventions Bulletin 1 (June 1998).
59. This assertion of course goes right to the heart of jurisprudential debate in the latter part of the 20th century. Hans Kelsen was one of the leading proponents of the idea of law as a science, but there is voluminous literature contesting that approach.
60. OPCW, Terms of Reference of the Scientifc Advisory Board, para. 3, C-II/DEC.10 (5 Dec. 1997).
61. reprinted in Tabassi, supra note 20, at 486. The members were increased from an original 20 to 25.
62. CWC, supra note 1, art. VIII(45).
63. See Lawand, supra note 47.
64. Terms of Reference of the Scientifc Advisory Board, supra note 49, at 3.
65. Terms of Reference of the Scientifc Advisory Board, supra note 49, at 4.
66. Similar debates have taken place in the context of the membership of the Confdentiality Commission of the OPCW. See Camilo S. Bezanilla, "The Chemical Weapons Convention Confdentiality Regime", in Treaty Enforcement and International Cooperation in Criminal Matters with special reference to the Chemical Weapons Convention 160 (RodrigoYepes-Enríques & Lisa Tabassi eds, 2002).
67. Both the International Court of Justice and the International Criminal Court serve as examples.
68. Lawand, supra note 47.
69. See OPCW, Rules of Procedure for the Scientifc Advisory Board and Temporary Working Groups of Scientifc Experts, EC-XIII/DG.2 (20 Oct. 1998)
70. reprinted in Tabassi, supra note 20, at 489.
71. Other examples are discussed in Lawand, supra note 47.
72. Terms of Reference of the Scientifc Advisory Board, supra note 49, paras 2(g), 2(b) respectively.
73. Terms of Reference of the Scientifc Advisory Board, supra note 49, paras 2(d), 2(e).
74. The Scientifc Advisory Board has no dispute resolution mandate, see The Confdentiality Commission established by the Annex on Confdentiality.
75. OPCW, Scientifc Advisory Board, para. 3, C-II/DEC.10 (5 Dec. 1997).
76. Lawand, supra note 47, at 3.
77. OPCW, Note by the Technical Secretariat, Establishment of a Trust Fund for the Scientifc Advisory Board, S/563/2006 (13 Apr. 2006). Tanks to Daniel Feakes for drawing this development to my attention.
78. See Lawand, supra note 47, at 3.
79. See Rules of Procedure for the Scientifc Advisory Board, supra note 57, Rule 2.
80. For example, by virtue of art.VIII(41), the Director-General is the "chief administrative officer."
81. CWC, supra note 1, art.VIII(41). He is responsible for confdentiality matters by virtue of the Annex on Confdentiality and also has responsibility for the Scientifc Advisory Board.
82. See CWC, supra note 1, art. VIII(45).
83. OPCW Synthesis (Newsletter of the OPCW), Mar.-Apr. 1999, at 4.
84. A notable exception is Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law (H.C.L. Merillat ed., 1999).
85. See also Ralph Zacklin, "The Role of the International Lawyer in an International Organization", in The International Lawyer as Practitioner 57 (Chanaka Wickremasinghe ed., 2000).
86. See, e.g., Hans Corell, "Legal Advisers Meet at UN Headquarters in New York", 85 Am. J. Int'l L. 371 (1991);
87. Hans Corell, "Second Legal Advisers' Meeting at UN Headquarters in New York", 61/62 Nordic J. Int'l L. 3 (1994);
88. Hans Corell, "Third Legal Advisers' Meeting at UN Headquarters in New York", 87 Am. J. Int'l L. 323 (1993);
89. Barry Mawhinney & Kim Girtel, "Fourth Legal Advisers' Meeting at UN Headquarters in New York", 88 Am. J. Int'l L. 379 (1994);
90. Miguel A. G. Félix, "Fifth Legal Advisers' Meeting at UN Headquarters in New York", 89 Am. J. Int'l L. 644 (1995).
91. Zacklin, supra note 69, at 61.
92. See CWC, supra note 1, art. VIII(43), (46), (47), (49).
93. Rule 93 allows for amendment: Rules of Procedure of the Conference, supra note 21, Rule 93.
94. Supra note 28 & 29 relating to Rules 56 (points of order) and 64 (decision on competence).
95. Rules of Procedure of the Conference, supra note 21, Rule 38 ("The Director-General or his or her representative may, with the approval of the presiding officer, make oral or written statements to such meetings.").
96. The expression comes from Rodoljub Etinski, "The Role of the Legal Adviser in Considering the Legality of Decisions of International Organizations", in Collection of Essays by Legal Advisers of States, Legal Advisers of International Organizations and Practitioners in the Field of International Law 243-257 (Ofce of Legal Afairs, United Nations, 1999).
97. See generally Louis B. Sohn, "Due Process in the United Nations", 69 Am. J. Int'l L. 621 (1975).
98. See Nigel White, The Law of International Organizations 8 (2d edn, 2005).
99. See generally Tomas M. Franck, Fairness in International Law and Institutions (1998).
100. See Klabbers, supra note 16.
101. See CWC, supra note 1, art. VIII(23) (setting out detailed provisions regarding the rotating membership of the Council).
102. See Carol Harlow, "Global Administrative Law: The Quest for Principles and Values", 17 Eur. J. Int'l L. 187 (2006);
103. B. S. Chimni, "International Institutions Today: An Imperial Global State in the Making", 15 Eur. J. Int'l L. 1 (2004).
104. See Kingsbury, Krisch & Stewart, supra note 4, at 52.
105. See Biological Weapons Convention, supra note 3 (providing an example, if negotiations on the Protocol were to be revived).