The Chemical Weapons Convention: political and constitutional issues.

• Author: Rotunda, Ronald D.

1. INTRODUCTION

   While 160 nations have signed the Chemical Weapons Convention ("CWC"), only 75 countries have ratified it thus far. On April 25, 1997, after years of political maneuvers, the U.S. Senate finally added the United States to the list, after a vote that was considered too close to call until shortly before ratification.(1) Although the final Senate vote was a lop-sided 74 to 26, the period prior to ratification witnessed a great deal of jockeying, as liberal supporters of the treaty criticized their conservative opponents.(2) This liberal support was a little surprising because there are important objections to the treaty based on the Fourth Amendment, which liberals, in other contexts, have supported.

   Obviously the goal of the CWC--removing the terror of chemical weapons--is laudable, but its procedures raise important questions under the Bill of Rights, particularly under the Fourth Amendment, regulating searches and seizures, and the Fifth Amendment, guaranteeing no taking of property without just compensation. Some proponents of the CWC have responded to the constitutional argument by attacking the motives of those who raise these constitutional questions, accusing them of really being "glued to a `we're No. 1' mentality."(3)

   Whatever one thinks of the bona fides of those who criticize the CWC, it is noteworthy that supporters of the CWC have urged Congress to enact legislation that would prohibit state and federal courts from enjoining CWC inspections even when those inspections and searches violate the Constitution.(4) Surely, it is reasonable to be concerned about the constitutionality of the searches authorized by the CWC, when its supporters concede the constitutional problem and try to work around it, not by amending the CWC, but by limiting the courts' jurisdiction to enforce the Constitution.(5)

   Before directly turning to the Constitutional questions, it is important to put the issue in perspective. It was not necessary for the United States to ratify the CWC in order to eliminate its stockpile of chemical weapons. We can eliminate our own stockpile unilaterally. (In fact, we already have decided to eliminate our chemical arms by 2004, prior to the time we would have to eliminate them under the treaty.)

   Similarly, the ratification of the CWC does not prevent the United States from renouncing the use of chemical weapons, In the past, the United States has threatened to use chemical weapons only in retaliation--if other countries used those weapons first. We can, if we wish, unilaterally forgo any chemical retaliatory option. Again, the CWC has nothing to do with that issue.

   The dispute involving the CWC focuses, instead, on different questions. Is the manufacture and storage of chemical weapons verifiable--particularly when the manufacturer is a private person, and the storage facility is some terrorist's garage? Are the intrusive search mechanisms of this treaty constitutional? If this particular treaty, even with its intrusive searches, still allows too many loopholes that impinge on verification, does that affect the analysis of the Fourth Amendment? Is it proper for the United States to authorize inspectors (who will be searching for evidence of a crime(6)) to engage in extensive and highly intrusive searches without any requirement or procedure for the inspectors to seek a search warrant? Normally, we expect criminal search warrants to describe with particularity the places to be searched and the things to be seized. Moreover, they may be issued only after a neutral judicial officer finds probable cause. But the CWC and its implementing legislation provide for none of that.(7) Under these circumstances, is this treaty constitutional and will it work?

2. LIMITATIONS OF THE CHEMICAL WEAPONS CONVENTION

   1. INTRODUCTION

      Proponents of the CWC typically claim that American ratification is essential because it is our last great chance to outlaw chemical warfare. For all its defects, supporters say that it is better than nothing, and that its benefits justify limiting and narrowly applying the Fourth Amendment.(8) Opponents express concern that the Chemical Weapons Convention--although it authorizes very intrusive searches without warrants and without probable cause--is like a generous legacy in a pauper's will,(9) which promises much but delivers little, because of its significant loopholes.

      The question of whether the CWC accompanies intrusive searches with significant loopholes has a Fourth Amendment dimension, because, as discussed below, the Court is more likely to invalidate a statutory(10) system of searches that is not well-designed and narrowly tailored to ferret out wrongdoing.(11) A defective CWC that is not carefully drafted and promises more than it can deliver is more likely to be invalid under the Fourth Amendment. If the CWC has both intrusive searches and significant loopholes, then it is much worse than a generous legacy in a pauper's will, for it intrudes on important constitutional rights without fulfilling its promise of eliminating chemical warfare.

      Let us now turn to some of the political issues that affect the question whether the CWC is verifiable and consider if these political issues may influence the resolution of the constitutional questions.

   2. NON-SIGNATORIES

      One inherent limitation of the CWC is that outlaw countries can simply refuse to ratify it. The threat posed to the United States by chemical weapons is less likely to come from countries like Sweden, than from pariah states like Libya, Syria, North Korea, and Iraq--none of which have ever signed the treaty, let alone ratified it. Moreover, we should also expect that some foreign countries that do sign the CWC will evade it by moving their chemical weapons facilities to non-signatory countries.(12) For example, the Central Intelligence Agency has acknowledged that: "Some other republics [of the former Soviet Union] maintain that Russia still has chemical weapons materials in their territories."(13)

   3. THE CWC'S LIMITED BAN OF CHEMICAL WEAPONS

      Countries that do ratify the CWC can also avoid violation or detection by redirecting their chemical efforts. Given the nature of chemical weapons, many chemicals have multiple uses, only one of which would be illegal under the treaty. There is no way to avoid this problem because chemicals necessary to produce mustard gas are also needed to produce ink for pens.(14) Chlorine was used in World War I in chemical warfare, though today we use it legally for laundry.(15) The Nazi gas chambers relied on legal rodenticides, and many legal dyes, drugs, additives, and pesticides can become chemical weapons by minor changes in their processing.(16) Ordinary chemicals can be put to extraordinary, and lethal, use.

      We should also expect that other countries will develop more advanced chemical weapons that work around the restrictions of the CWC and exploit its limitations. The intelligence community recently reported that Russia is developing and producing a new generation of chemical weapons that are not covered by the CWC's Schedule of Chemicals.(17) Just as restrictive tax laws spawn more creative tax shelters, the CWC should be expected to beget different types of chemical weapons. The CWC will likely channel (rather than ban) chemical weapons development into types that may be more insidious, more dangerous, and less detectable.

      These new Russian nerve gases, such as A-232, are made from common industrial and agricultural chemicals. Two relatively harmless compounds are stored in separate containers. Because they are not lethal until mixed, they are easier to manufacture than conventional nerve gas, more difficult to detect, and safer to transport and stockpile, until they are mixed together, when they then become deadly. Even microscopic amounts of A-232 can kill. This type of chemical weapon was expressly designed to be outside of the CWC ban. If Russia were to ratify the CWC, production of these types of chemical weapons (called Novichok "binary" weapons) could continue.(18) The CWC does not affect weapons designed to circumvent its verification regime.

      A veteran Soviet chemical weapons specialist, who confirmed the development of these binary weapons (and was jailed for his whistle-blowing), has reported:

      Our generals see the implementation of the [CWC] treaty

      with its loopholes as a way to dispose of their obsolete and

      hazardous stockpiles with American taxpayer's help, while

      preserving their new classes of toxins and, even worse,

      permitting their sale abroad for hard currency.(19)

   4. OTHER LOOPHOLES

      The CWC claims that it will eliminate all chemical weapons and will effectively ban their use, development, production, deployment, and stockpiling.(20) When something sounds too good to be true, it usually is. Consider an unremarkable chemical implement of war, riot control chemicals, and what the CWC says about them. The CWC signatories solemnly agree that--

      Each State Party undertakes not to use riot control agents as a

      method of warfare.(21)

      "Chemical Weapons" are defined as including--"Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention ...."(22)

      This definition does not seem noteworthy, until one moves to another section of the CWC, where we learn that what the right hand giveth, the left hand taketh away, for the CWC tells us that the phrase, "Purposes Not Prohibited Under this Convention," means, among other things: "Law enforcement including domestic riot control purposes."(23)

      In short, countries may develop, test, stockpile, and use riot control chemicals, as long as they purport to use them domestically. The CWC does not ban riot control chemicals; instead, it appears to authorize countries to use against their own civilians what they may not use against enemy troops in time of war.(24) Moreover, if these riot control weapons are used against enemy troops, we may never know for sure. Even...